Republic v Egerton University & 3 others; Kibue (Interested Party); Ngari & another (Exparte Applicants) (Judicial Review Miscellaneous Application E001 of 2023) [2024] KEELRC 314 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents' action against the applicants was merited
- 2.What orders to grant in the circumstances
Key legal issues
#Whether the 17th October 2022 launch of the strike, before the 7-day notice lapsed, exposed the applicants to discipline
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
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.
Whether disciplinary proceedings against the applicants for union activities were lawful
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
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.
Whether the court should intervene in the employer's internal disciplinary process
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
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.
Legal principles established
#- 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
#- 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.No order of costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#Costs of the application borne by the Respondents
The court declined to award costs, making no order of costs instead
Costs
There will be no order of costs.
Quotable passages
#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
There will be no order of costs.
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.
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.
subjecting them to a disciplinary process when the court had referred the parties to a conciliation process was not fair in the circumstances.
Issues in the judgment
#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)
The judgment states the strike was 'to commence on 1st October, 2022' which appears to be a typographical error for 18th October 2022
The amendment leave date (12th January 2023) precedes the Amended Notice of Motion date (8th March 2023), which is internally inconsistent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.