Universities Academic Staff Union (UASU) Masinde Muliro University of Science and Technology (MMUST) Chapter v Masinde Muliro University of Science and Technology (MMUST) (Cause E018 of 2024) [2024] KEELRC 1690 (KLR)
The bottom line
#A Kenyan university cannot force academic staff to retire at 70 when a registered CBA sets retirement at 74, absent employee consultation.
What this practically means
#Executive summary
#Key legal issues
#Whether the MMUST Statute 2022 can supersede the registered CBA fixing retirement age at 74 years
The CBA supersedes the Statute; the unilateral change of retirement terms was unlawful as there was no consultation and the CBA conformed with public policy on retirement.
The CBA was negotiated, signed on 15 January 2020 and registered by the court, two years before the 2022 Statute. Under section 26(1) of the Employment Act more favourable CBA terms prevail, and under section 59 of the Labour Relations Act CBA terms are incorporated into individual contracts. Section 10(5) of the Employment Act requires consultation before varying contractual terms. No such consultation was shown, so the Statute's unilateral variation was unlawful.
Whether members may serve beyond the compulsory retirement age
Continuation in service beyond the compulsory retirement age of 74 years for academic staff is against public policy; the Respondent may enforce retirement at 74 for those who have attained it.
The court agreed with the Respondent that public officers cannot continue in service beyond the compulsory retirement age. The compulsory age applicable to academic staff is 74 years per the CBA, consistent with government policy as restated in the KUDHEIHA case. Retirement notices based on age 70, contrary to the CBA, could not stand, but retirement at 74 remains enforceable.
Legal principles established
#- A registered CBA providing more favourable terms to employees supersedes a university council statute; a university statute does not enjoy the status of an Act of Parliament and cannot unilaterally vary negotiated employment terms.
- By dint of section 26(1) of the Employment Act, a CBA providing more favourable terms supersedes less favourable statutory-term conditions set by the employer.
- CBA terms form part of employees' contracts and can only be varied after consultation with employees and amendment of the CBA.
Court orders
#- 1.Interim order restraining the Respondent from retiring or threatening to retire the Applicant's members until they attain the age of 74 years pending the hearing of the claim
- 2.Leave to the Respondent to enforce compulsory retirement age of 74 years for members who have already attained that age as per the CBA
- 3.Each party to bear its own costs in the application
- 4.Parties to comply with Order 11 of the Civil Procedure Rules
- 5.Pretrial directions in the claim on 16th July 2024
- Jurisdiction invoked
- Articles 10 and 159(2)(d) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Universities Academic Staff Union (UASU) Masinde Muliro University of Science and Technology (MMUST) Chapter v Masinde Muliro University of Science and Technology (MMUST) (Cause E018 of 2024) [2024] KEELRC 1690 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 22nd May 2024 in an ELRC claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1690/eng@2024-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.