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ELRCPartially Allowed· [2024] KEELRC 642 (KLR)

Kenya University Staff Union (KUSU) v Co-operative University of Kenya (Employment and Labour Relations Cause E560 of 2023) [2024] KEELRC 642 (KLR)

Employment and Labour Relations Court
20 March 2024
1,577 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked a university from hiring externally before first considering its own existing staff, as required by its own HR policy.

What this practically means

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Executive summary

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The Claimant, a trade union with a Recognition Agreement with the Respondent University, challenged the Respondent's external advertisement of 23rd June 2023 for four positions without first considering serving unionisable staff, contrary to its Human Resource Manual. Two applications were canvassed together by written submissions: one dated 14th July 2023 seeking an injunction against processing the advertised applications, and another dated 6th November 2023 seeking production of an evaluation report, compelled internal advertisement, a finding of abuse of office, and restraint against discrimination and intimidation of union officials. The court examined clauses 2.7 and 6.3 of the Manual and chapter six on promotions, which establish a hierarchy of manpower sources with external recruitment last and require performance appraisal with full participation of affected employees. The Respondent's reliance on a skills gap analysis confined to reviewing curricula vitae was held to appear irregular. The court found a prima facie case, holding that where the act complained of may be unlawful, adequacy of damages does not arise, and that filling the positions externally would obliterate the subject matter. The injunction application was allowed, restraining the Respondent from processing applications and conducting interviews for the advertised positions pending hearing and determination of the suit, with costs to the Claimant. The November 2023 application was disallowed with costs to the Respondent, most of its issues being reserved for trial.

Key legal issues

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01

Whether the Respondent was required to consider serving staff through internal advertisement before external advertisement

Holding

The Respondent's Human Resource Manual sets out a hierarchy of manpower sources with external recruitment last, and vacant positions should be advertised internally before resorting to external advertisement

Reasoning

Clause 2.7 of the Manual lists promotions, transfers, internal recruitment and external recruitment in that order, and clause 6.3 requires internal advertisement of vacant positions. External advertisement is permissible only if no suitable staff are found internally. The court found, on the preliminary evidence, that the Respondent appeared to breach its own Manual, establishing a prima facie case.

p. 3
02

Whether the Respondent's skills gap exercise satisfied the Manual

Holding

Confining the exercise to a review of staff curricula vitae without performance appraisal and employee participation was irregular

Reasoning

Chapter six of the Manual requires performance appraisal of employees proposed for promotion, not merely a review of curricula vitae. Appraisal must involve full participation of affected employees, who must be given results and informed why they did not meet the threshold. The material before the court did not disclose this, supporting a prima facie case.

p. 3
03

Whether an injunction should issue notwithstanding possible compensation in damages

Holding

An injunction should issue to prevent further violation of the law or internal regulations, and filling the positions externally would obliterate the subject matter

Reasoning

Relying on Banis Africa Ventures Limited v National Land Commission quoting Said Almed v Mannasseh Benga, where the defendant's act may be unlawful, adequacy of damages does not arise. Once the Respondent filled the contested positions externally, the Claimant's members would be locked out and the subject matter obliterated, making the case deserving of injunctive relief.

p. 4

Legal principles established

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  • Where a defendant's act complained of is or may very well be unlawful, the question whether damages can be an adequate remedy does not fall for consideration; a party should not be allowed to maintain an advantageous position gained by flouting the law simply because it can pay for it.
  • Irreparable injury does not mean injury that cannot possibly be repaired; it means injury which is substantial in nature, and an injunction may be granted even where the injury is capable of compensation in damages if the act is likely to destroy the subject matter.
  • An employer relying on a Human Resource Manual must comply with the hierarchical recruitment process it prescribes, and staff appraisal must be with the full participation of the affected employees.

Court orders

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  1. 1.The application dated 6th November 2023 is disallowed with costs to the Respondent
  2. 2.An order of injunction restraining the Respondent from processing the applications and proceeding with interviews for the advertised positions pursuant to the Daily Nation of Friday, June 23, 2023 and the Respondent's website reference CUK/EXTADVERT/3/23(1) for June 2023 pending the hearing and final resolution of the suit
  3. 3.Costs of the application dated 14th July 2023 granted to the Claimant

Authorities

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Legislation

  • ELRC Procedure RulesRule 28(3)

Cases cited (2)

  • Banis Africa Ventures Limited v National Land Commission
    [2021] eKLR
  • Said Almed vs. Mannasseh Benga & Another
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (court not expressly invoked in the excerpt)

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, "Kenya University Staff Union (KUSU) v Co-operative University of Kenya (Employment and Labour Relations Cause E560 of 2023) [2024] KEELRC 642 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/642/eng@2024-03-20

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