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ELRCPartially AllowedJudicial Review Application (Amended Notice of Motion dated 8th March 2023)

Republic v Egerton University & 3 others; Kibue (Interested Party); Ngari & another (Exparte Applicants) (Judicial Review Miscellaneous Application E001 of 2023) [2024] KEELRC 314 (KLR)

Employment and Labour Relations Court
21 February 2024
6,670 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court blocked Egerton University from disciplining union officials for strike-related activities, protecting lawful union participation from employer discipline.

What this practically means

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Executive summary

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The 1st and 2nd ex parte applicants, branch Chairperson and Secretary of UASU at Egerton University, sought an order of prohibition restraining the respondents from continuing disciplinary proceedings founded on charges contained in letters dated 22nd December 2022 and 4th January 2023. The charges arose from their participation in the launch of a strike on 17th October 2022, following a seven-day strike notice issued on 11th October 2022 by the interested party over non-remittance of third-party deductions, unilateral variation of pension contributions, and related grievances. The respondents opposed, arguing the strike was launched before the notice period lapsed on 18th October 2022 and was therefore unprotected, and that the applicants breached the University's Code of Conduct, the Labour Relations Act and the Employment Act; they also urged the court not to interfere with internal disciplinary processes. The court framed two issues: whether the respondents' action was merited, and what orders to grant. It held that although the law does not recognise a 'launch' of a strike before commencement, the applicants' conduct on 17th October 2022, a day after issuing notice, was in contemplation of a protected strike and protected under section 79(3) of the Labour Relations Act. Participation in trade union activities is not a fair reason for disciplinary penalty under section 46 of the Employment Act and Article 41(2) of the Constitution, and subjecting the union officials to discipline while court-ordered negotiations and conciliation were pending was unfair and irregular. The court granted an order of prohibition against the disciplinary proceedings and made no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents' action against the applicants was merited
  2. 2.What orders to grant in the circumstances

Key legal issues

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01

Whether the 17th October 2022 launch of the strike, before the 7-day notice lapsed, exposed the applicants to discipline

Holding

The court accepted that, having issued a strike notice, the applicants' conduct on 17th October 2022 may have been in contemplation of the protected strike set to commence on 18th October 2022 and was thus insulated under section 79(3) LRA

Reasoning

The court acknowledged that the law does not provide for a 'launch' of a strike prior to commencement, but held that a union is allowed some minimum conduct in contemplation or furtherance of a protected strike. Since a strike notice had actually been issued on 11th October 2022 for a strike effective 18th October 2022, the activities of 17th October were treated as conduct in contemplation of a protected strike, protected under section 79(3) of the Labour Relations Act.

p. 11
02

Whether disciplinary proceedings against the applicants for union activities were lawful

Holding

No - participation in trade union activities is not a fair reason for disciplinary penalty under section 46 of the Employment Act and Article 41(2) of the Constitution

Reasoning

The court found the applicants were engaged in participation in activities of a trade union as officials of UASU Egerton Chapter. Section 46(d),(e) and (h) of the Employment Act and Article 41(2) of the Constitution protect such participation. The court also relied on ILO Conventions protecting workers against anti-union discrimination. Disciplining them during pendency of court-ordered negotiations was unfair.

p. 12
03

Whether the court should intervene in the employer's internal disciplinary process

Holding

Yes - the disciplinary process was initiated for ulterior/irregular reasons, being a response to protected union activities during a conciliation process ordered by the court

Reasoning

Although respondents urged the court not to interfere with internal disciplinary processes, the court found the process was triggered by union activities related to the strike, was instituted during pendency of negotiations and conciliation, and was therefore irregular. Judicial review remedies lie where the decision-making process is tainted with illegality or procedural impropriety.

p. 12

Legal principles established

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  • An employer may not take disciplinary action against an employee for conduct in contemplation or furtherance of a protected strike
  • Subjecting union officials to disciplinary proceedings for participation in union activities while court-ordered conciliation is ongoing is unfair and irregular

Court orders

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  1. 1.An order of prohibition restraining the respondents from proceeding with or undertaking disciplinary proceedings against the 1st and 2nd Ex parte applicants on account of grounds or charges contained in the letters dated 22nd December 2022 (EUAPD/18915/1569) and 4th January 2023 (EU/APD 18915/156)
  2. 2.No order of costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 8 & 9 of the Law Reforms Act, Order 52 Rule 1 and Order 53 Rule 3 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act

Relief refused

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Costs of the application borne by the Respondents

The court declined to award costs, making no order of costs instead

p. 13

Costs

There will be no order of costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I therefore find for the applicants and grant the following orders. 1. An order of prohibition do issue restraining the respondents from proceeding with or undertaking disciplinary proceedings against the 1st and 2nd Exparte applicants on account of grounds or charges contained in the letter dated 22nd December 2022
p. 13Final orders - prohibition
There will be no order of costs.
p. 13Costs
An employer may not dismiss or take disciplinary action against an employee for participating in a protected strike or for conduct in contemplation or furthering a protected strike.
p. 11Protection of strike-related conduct under section 79(3) LRA
Since the applicants had actually issued a strike notice I would take it that the conduct of 17th October 2022 may have been in contemplation of the strike set to commence on 18th October 2022.
p. 11Launch of strike as contemplation of protected strike
subjecting them to a disciplinary process when the court had referred the parties to a conciliation process was not fair in the circumstances.
p. 13Unfairness of discipline during conciliation

Issues in the judgment

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minor

Judgment inconsistently describes the nature of the 17th October 2022 activity, treating it as a 'launch' of a strike whose legality the court simultaneously questions while protecting it under section 79(3)

minor

The judgment states the strike was 'to commence on 1st October, 2022' which appears to be a typographical error for 18th October 2022

minor

The amendment leave date (12th January 2023) precedes the Amended Notice of Motion date (8th March 2023), which is internally inconsistent

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Egerton University & 3 others; Kibue (Interested Party); Ngari & another (Exparte Applicants) (Judicial Review Miscellaneous Application E001 of 2023) [2024] KEELRC 314 (KLR)", Case Analysis (2024). Judicial Review Application (Amended Notice of Motion dated 8th March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/314/eng@2024-02-21

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