Kenya University Staff Union (KUSU) v Co-operative University of Kenya (Employment and Labour Relations Cause E560 of 2023) [2024] KEELRC 642 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Respondent was required to consider serving staff through internal advertisement before external advertisement
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
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.
Whether the Respondent's skills gap exercise satisfied the Manual
Confining the exercise to a review of staff curricula vitae without performance appraisal and employee participation was irregular
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.
Whether an injunction should issue notwithstanding possible compensation in damages
An injunction should issue to prevent further violation of the law or internal regulations, and filling the positions externally would obliterate the subject matter
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.
Legal principles established
#- 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
#- 1.The application dated 6th November 2023 is disallowed with costs to the Respondent
- 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.Costs of the application dated 14th July 2023 granted to the Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction (court not expressly invoked in the excerpt)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.