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ELRCDismissedMisc. Application E088· [2023] KEELRC 2778 (KLR)

University Academic Staff Union (UASU) v Garissa University; Ministry of Labour and Social Protection & another (Interested Parties) (Miscellaneous Case E088 of 2023) [2023] KEELRC 2778 (KLR)

Employment and Labour Relations Court
8 November 2023
JGJacob Gakeri
3,202 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to register a university union's CBA because it was negotiated without the Salaries and Remuneration Commission's required involvement.

What this practically means

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Executive summary

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The Applicant Union moved the Employment and Labour Relations Court by Notice of Motion dated 5th April 2023 seeking registration of an internal Collective Bargaining Agreement for 2013–2017, executed on 17th March 2020, between the union and the Respondent, a public university. The union, through the Supporting Affidavit of Dr. Constantine Wasonga, deposed that the CBA was freely negotiated, forwarded to the Ministry of Labour and Social Protection on 8th May 2020 for registration, and that the Ministry's failure to present it to court violated members' rights under Article 41 and Section 57 of the Labour Relations Act. The Respondent, through Salah Farah's Replying Affidavit, opposed registration on the ground that the CBA was negotiated without adherence to the Salaries and Remuneration Commission's guidelines and without SRC clearance, as required for public institutions under Article 230(4) of the Constitution; the Attorney General also lodged an objection on the same basis. The court framed a single issue: whether the CBA should be registered. It accepted that the CBA was freely negotiated and executed and that a CBA is a binding contract, but held itself bound by the Court of Appeal in TSC v KNUT that SRC advice on public officers' remuneration is binding advice in rem and must be sought before concluding CBAs affecting public officers. Since the Respondent, as an employer of public officers, executed the CBA without SRC involvement, the absence of the SRC vitiated the CBA, rendering it unregistrable; an unregistered CBA is further an unenforceable promise under Section 59(5). The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the 2013–2017 CBA should be registered

Holding

The application for registration was dismissed because the CBA was negotiated and concluded without SRC involvement and is therefore not registrable.

Reasoning

The court found as common ground that the CBA was freely negotiated and executed. However, relying on the Court of Appeal decision in TSC v KNUT, the advice of the SRC on remuneration of public officers is binding and is a constitutional procedural step. The Respondent, a public university employing public officers, failed to seek SRC advice before executing the CBA. That omission vitiated the CBA, making it unregistrable; an unregistered CBA is also an unenforceable promise under Section 59(5) of the Labour Relations Act.

p. 7
02

The role of the SRC in CBA negotiations between unions and public institutions

Holding

SRC advice is binding on national and county governments and public bodies and must be sought before concluding CBAs affecting public officers.

Reasoning

The court traced the constitutional framework under Articles 230(1), (4) and (5) and 260, Section 11 of the SRC Act and Section 15(6) of the ELRC Act, and held itself bound by the unanimous Court of Appeal holdings in TSC v KNUT that SRC advice is advice in rem, binding on all public bodies, and that no valid salary or benefit of a public officer may ensue from a process ignoring the SRC.

p. 6
03

Delay in forwarding the CBA for registration

Holding

The delay by the Ministry of Labour and the Applicant's failure to follow up were noted, but the decisive defect was the absence of SRC involvement.

Reasoning

The court observed that the Ministry delayed without notifying the parties of its concerns, and the Applicant made no follow-up between 8th May 2020 and 14th December 2021. The court also noted prudence would have dictated forwarding the CBA to the SRC before submission to the Ministry. Ultimately, an unregistered CBA is unenforceable under Section 59(5) of the Labour Relations Act.

p. 4

Legal principles established

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  • A CBA is a binding agreement analogous to any other contract and may only be set aside on the principles governing the setting aside of ordinary contracts such as duress, undue influence, misrepresentation, mistake
  • An unregistered CBA is unenforceable by virtue of Section 59(5) of the Labour Relations Act, 2007
  • Public body employers are constitutionally obligated to seek the advice of the Salaries and Remuneration Commission before negotiating and executing CBAs relating to public officers; CBAs concluded without SRC involvement are not registrable

Court orders

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  1. 1.The Application dated 5th April, 2023 is dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22(1) and (2), 23(1) and (3), 27, 41, 47, 48, 159(2)(d), 230(1), 230(4), 230(4)(b), 230(5), 259(2), 260
  • Labour Relations ActSections 12(1)(2) and (3), 57, 59, 59(3), 59(5), 60
  • Employment and Labour Relations Court ActSections 12(1)(2) and (3), 15(6), 57(1)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 28 and 32
  • Fair Administrative Action ActSections 4 and 5
  • Salaries and Remuneration Commission Act, 2011Section 11
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (8)

  • Social Service League, MP Shah Hospital v KUDHEIHA
    (2018) eKLR
  • Inter-Public Universities Councils Consultative Forum of the Federation of Kenya Employers & 2 others v KUDHEIHA; Ministry of Education & 3 others (Interested Parties)
    CBA No 1 of 2020
  • Said Ndege v Steel Makers Ltd
    (2014) eKLR
  • Kenya Union of Commercial Foods and Allied Workers v National Social Security Fund; Salaries and Remuneration Commission (Objector)
    (2021) eKLR
  • Nairobi City County Government v Kenya County Government Workers Union; Salaries and Remuneration Commission (Interested Party Applicant)
  • National Hospital Insurance Fund v Kenya Union of Commercial Food and Allied Workers & 2 others
    (2016) eKLR
  • Teachers Service Commission (TSC) v Kenya National Union of Teachers (KNUT) & 2 others
    (2015) eKLR
  • Kenya National Union of Nurses v Moi Teaching and Referral Hospital; SRC & Ministry of Labour (Interested Parties)
    (2015) eKLR
Jurisdiction invoked
Articles 22(1) and (2), 23(1) and (3), 27 and 41 of the Constitution of Kenya; Sections 12(1)(2) and (3) and 57(1) of the Labour Relations Act and the Employment and Labour Relations Court Act; Rules 28 and 32 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "University Academic Staff Union (UASU) v Garissa University; Ministry of Labour and Social Protection & another (Interested Parties) (Miscellaneous Case E088 of 2023) [2023] KEELRC 2778 (KLR)", Case Analysis (2023). Misc. Application E088. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2778/eng@2023-11-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.