University Academic Staff Union & 2 others v Kenyatta University (Employment and Labour Relations Cause 160 of 2009) [2024] KEELRC 1577 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection raised a pure point of law
It did not; the court would need to probe the Court of Appeal judgment to ascertain the facts, so the objection failed
Applying Mukisa Biscuits and Oraro v Mbaja, a preliminary objection must rest on a point of law pleaded or arising by clear implication and must not depend on disputed facts. Because determining jurisdiction required probing the Court of Appeal's judgment, the objection was factual in nature and was dismissed.
Whether the ruling of 10th March 2020 could be reviewed to extend computation of dues beyond the judgment date
No; the judgment never awarded anything beyond the judgment date, and extending it would amount to reviewing the 2009 award
Rule 33 permits review for error apparent on the face of the record. The 10th March 2020 ruling deliberately limited computation to the award as at the judgment date. Extending dues to reinstatement or retirement age would amount to reviewing the 2009 award, which under the then-applicable Trade Disputes Act was final and not to be questioned or reviewed.
Whether the award of costs in the 10th March 2020 ruling was reviewable
Yes; it was an error apparent on the face of the record since the 2009 award expressly directed each party to bear own costs
The original award directed each party to bear their own costs, and no review of that award had occurred. The award of costs in the consequential ruling therefore contradicted the judgment and constituted an error the court could correct on review under Rule 33.
Whether the Respondent could benefit from its own default in failing to reinstate
No; the double-payment complaint was rejected as unconscionable given the Respondent's non-compliance with the reinstatement order
The court had directed reinstatement; the issue of salary overlap with other employment would not have arisen had the Respondent complied. It would be unconscionable to allow the Respondent to benefit from its own default.
Legal principles established
#- A court has power to correct, on review, an error apparent on the face of the record, such as an award of costs contrary to the express terms of the judgment
Court orders
#- 1.The preliminary objection filed by the 2nd Claimant is dismissed
- 2.The application dated 6th May 2021 is dismissed as unmeritorious
- 3.The application dated 4th February 2022 is allowed only in respect of the prayer on costs; the rest of the prayers are dismissed
- 4.Each party shall bear its own costs
- Jurisdiction invoked
- Sections 3 and 16 of the Employment and Labour Relations Court Act and Rule 33 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "University Academic Staff Union & 2 others v Kenyatta University (Employment and Labour Relations Cause 160 of 2009) [2024] KEELRC 1577 (KLR)", Case Analysis (2024). ELRC No. 160 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1577/eng@2024-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.