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ELRCDismissedELRC No. 1022 of 2019 (Memorandum of Claim filed 25th July 2019)· [2024] KEELRC 1265 (KLR)

Kenya Private Universities Workers Union v Africa International University (Employment and Labour Relations Cause 487 of 2019) [2024] KEELRC 1265 (KLR)

Employment and Labour Relations Court
3 May 2024
2,657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed unions can represent members without a recognition agreement, but dismissed the wage claim because contracts lawfully consolidated house allowance into salary.

What this practically means

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Executive summary

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This first-instance judgment of the Employment and Labour Relations Court, delivered virtually on 3rd May 2024 by Maureen Onyango, Judge, determined a claim by a trade union on behalf of sixteen named grievants and others, seeking declarations of underpayment and non-payment of house allowance, permanent injunctions, compensatory arrears, interest and costs. The Respondent, a private university, opposed the claim on three principal grounds: res judicata by reference to a consent settlement in ELRC No. 2102 of 2017; lack of locus standi on the basis that union members did not form a simple majority of its 97 employees; and denial of underpayment, contending it paid above the statutory minimum wages and consolidated house allowance within salaries. The court framed three issues: the union's locus, entitlement to compensation for underpayment and unpaid house allowances, and whether the reliefs were merited. On locus, the court held that membership, not recognition or majority status, confers representation rights, applying KETASWU v University Council University of Nairobi, and found the union had locus. On the merits, the court found the Respondent had always paid wages above the consolidated statutory minimum rates and that the contracts expressly provided for a consolidated salary of 85% basic pay and 15% house allowance, which section 31(2) of the Employment Act permits. The absence of a house allowance line on payslips did not displace the contracts as the primary documents. The court found no proof of underpayment, unpaid house allowance, or detrimental unilateral variation of contracts, dismissed the claim, and made no orders for costs.

Key legal issues

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01

Whether the Claimant union had locus standi to sue on behalf of the Grievants despite lacking a recognition agreement or simple majority membership

Holding

The Claimant had locus standi. Membership of a trade union is distinct from recognition; any employee who has joined a union is entitled to representation by that union, and the Respondent confirmed the Claimant had members among its employees.

Reasoning

The court distinguished recognition (necessary for negotiating terms and conditions) from membership (which confers representation rights). Relying on KETASWU v University Council University of Nairobi, the court held that representation does not require a simple majority or a recognition agreement, Section 48 of the Labour Relations Act providing the joinder procedure through Form S check-off. Since the Respondent confirmed the union had members among its employees, locus was established.

p. 5
02

Whether the Grievants were underpaid wages and house allowance contrary to sections 25 and 31 of the Employment Act and the wages orders

Holding

No underpayment was proved. The Respondent paid wages above the consolidated statutory minimum rates, and the contracts expressly provided for a consolidated salary of 85% basic pay and 15% house allowance, which is permitted by section 31(2) of the Employment Act.

Reasoning

The court set the burden: the Claimant had to show wages paid fell below the consolidated statutory minimum wage (minimum basic pay plus 15% house allowance). The Respondent gave a year-by-year breakdown from 2011 showing payment above statutory minimums, which the Claimant largely acknowledged. The absence of a house allowance line in the payslips did not defeat the claim because the contracts of employment were the primary documents and expressly consolidated the allowance. Section 31(2) expressly sanctions such consolidation.

p. 6
03

Whether the contracts of the Grievants were unilaterally varied to their detriment contrary to section 13 of the Employment Act

Holding

No proof of unilateral detrimental variation of the contracts without consultation was established.

Reasoning

The court found nothing in the evidence to support the allegation that the Respondent unlawfully reduced salaries or altered contract terms. The consolidated salary structure was expressly stated in the contracts from the outset, so no detrimental variation arose. The Claimant did not demonstrate any breach of section 13 of the Employment Act, and the allegation was not substantiated on the documents before the court.

p. 7

Legal principles established

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  • Membership of a trade union, not recognition or a simple majority, confers on the union the right to represent an employee member in court
  • An employer may lawfully pay a consolidated wage that includes an element of house allowance where the contract of service so provides, under section 31(2) of the Employment Act
  • A claimant alleging underpayment must demonstrate that the salary paid was less than the consolidated statutory minimum wage, that is, minimum basic pay plus 15% house allowance

Court orders

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  1. 1.The Claim is dismissed for lack of merit
  2. 2.No orders for costs - each party to bear its own costs

Authorities

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Legislation

  • Labour Relations Actsection 48 (procedure for joinder of an employee to trade union membership by Form S check-off)
  • Universities Act No. 42 of 2012general (establishment of private universities)
  • Employment Actsections 25 and 31 (housing/consolidation of wages); section 26(2); section 13
  • Labour Institutions Actsection 48 (Wages Order to constitute minimum terms of conditions of employment)

Cases cited (7)

  • Robert Ngande Kathathi v Francis Kivuva Kitonde
    [2020] eKLR
  • Bahati Shee Mwafundi v Elijah Wambua
    [2015] eKLR
  • Daniel Mburu Muriu v Hygrotech East Africa Ltd
    [2021] eKLR
  • Grain Pro Kenya Inc. Ltd v Andrew Waithaka Kiragu
    [2019] eKLR
  • Nancy Omolo v Mercy Corps
    [2021] eKLR
  • Postal Corporation of Kenya v Andrew K. Tanui
    [2019] eKLR
  • Kenya Tertiary and Schools Workers Union (KETASWU) v University Council University of Nairobi; KUDHEIHA Workers (Interested Party)
    [2021] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction under Article 162(2) of the Constitution and the Employment and Labour Relations Court Act (implied; not expressly cited in the judgment)

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 Private Universities Workers Union v Africa International University (Employment and Labour Relations Cause 487 of 2019) [2024] KEELRC 1265 (KLR)", Case Analysis (2024). ELRC No. 1022 of 2019 (Memorandum of Claim filed 25th July 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1265/eng@2024-05-03

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