University Academic Staff Union (UASU) v Jomo Kenyatta University of Agriculture and Technology; Ministry of Labour and Social Protection & another (Interested Parties) (Miscellaneous Case E084 of 2023) [2023] KEELRC 2791 (KLR)

Black's Law Dictionary definitions of valid and contract were adopted. A CBA is heavily regulated by statute and becomes a binding, enforceable agreement only upon registration by the ELRC under sections 59 and 60 of the Labour Relations Act and the ELRC (Procedure) Rules, 2016. Registration incorporates its terms into individual contracts of employment under section 59(3) and makes it enforceable under section 59(5). Before registration, therefore, the document before the court was an agreement with the potential of maturing into an enforceable CBA, not a contract.

Under article 230(4)(b) and 5 of the Constitution and section 11 of the SRC Act, the SRC has a central role in determining public officers' salaries and benefits. The Court of Appeal in TSC v KNUT (5-judge bench) held SRC advice binding and its pursuit a constitutional procedural step. Public university employees are public officers. There was no evidence that SRC advice was sought, that the Ministry analysed the CBA, or that it complied with guidelines. Ignoring the SRC vitiated the negotiations and rendered the CBA invalid and incapable of registration.

The Ministry's objection, lodged after the applicant had filed and served submissions, questioned the absence of SRC clearance and of SRC involvement in the negotiations. Although the objection came late and did not address submissions, the court independently examined the statutory and constitutional framework and the evidential record, finding no evidence of SRC engagement or Ministry analysis. The procedural lapses of the objector therefore did not assist the applicant, who bore the burden of establishing registrability.