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ELRCDismissedPetition (application dated 6th October 2022)· [2024] KEELRC 2447 (KLR)

Universities Academic Staff Union (UASU) v Kenyatta University (Employment and Labour Relations Petition E173 of 2022) [2024] KEELRC 2447 (KLR)

Employment and Labour Relations Court
4 October 2024
AMAnna Ngibuini Mwaure
2,160 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment and Labour Relations Court refused to block Kenyatta University's new lecturers' workload policy, ruling the union failed to show harm beyond money.

What this practically means

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Executive summary

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The University Academic Staff Union (UASU), the Petitioner, moved the Employment and Labour Relations Court by a Notice of Motion dated 6th October 2022 seeking conservatory orders restraining Kenyatta University from implementing Memo KU/DVCACAD/CLR/VOL.7 dated 8th September 2022 on Revised Academic Staff Workload Units without the union's input, pending hearing of the application and the main Petition. UASU contended that it had a registered Collective Bargaining Agreement with public universities, that the memo compulsorily increased lecturers' workload without consultation or additional remuneration, and that this infringed Article 41 (collective bargaining) and Article 232 of the Constitution. The Respondent opposed, arguing the memo did not increase workload beyond 40 hours weekly, that consultation occurred, that the union was beset by internal wrangles, that it lacked capacity to file suit given orders in related ELRC petitions, that a similar petition had been dismissed, and that the application was premature as internal CBA dispute mechanisms had not been exhausted. The court framed the sole issue as whether the Applicant was entitled to conservatory orders. Applying the principles from Gatirau Peter Munya, Invesco Assurance, Board of Management of Uhuru Secondary School, Mirugi Kariuki and Re Bivac, the court held that no prima facie case was established because the alleged injury was quantifiable and compensable in monetary terms, and that the memo had been in operation since 2022 so any orders were overtaken by events. The application was dismissed with each party bearing its own costs, the main Petition to be heard and determined on its merits.

Key legal issues

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01

Whether the Petitioner established a prima facie case justifying conservatory orders

Holding

No prima facie case was established; the injury alleged (additional workload without additional remuneration) is quantifiable and compensable in monetary terms

Reasoning

The court applied the principles in Board of Management of Uhuru Secondary School and the prima facie test in Mirugi Kariuki and Re Bivac. Following the reasoning in Fidelis Omwamba Onsanga v Tailors & Textiles Workers Union, the court found the alleged harm to be quantifiable in monetary terms and therefore not irreparable, so the threshold of a prima facie case with likelihood of success was not met.

p. 5
02

Whether conservatory orders could issue given the memo's implementation since 2022

Holding

The orders were overtaken by events since the memo had been implemented since 2022, and there was no urgency

Reasoning

The court noted the agency fee/memo had been in effect since the memo dated 8th September 2022 and implemented from the 1st semester of the 2022/2023 academic year. Granting conservatory orders at that stage would not preserve a status quo and would disrupt the university's academic programmes; the proper course was to hear the main Petition.

p. 5

Legal principles established

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  • Conservatory orders bear a public-law connotation and are not tied to private-party considerations such as irreparable harm or probability of success
  • A conservatory order preserves the subject matter and maintains the status quo until the suit is heard
  • Irreparable harm means damage or injury which cannot be computed or compensated in monetary terms; injury capable of monetary compensation does not support the claim of irreparable harm
  • A prima facie case requires an intellectual exercise considering, without making findings, the scope of the remedy sought and the grounds and possible principles of law involved

Court orders

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  1. 1.The application dated October 6, 2022 is found unmerited and is dismissed accordingly
  2. 2.Each party will meet their respective costs of this application
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes; constitutional rights under Articles 41 and 232 of the Constitution invoked

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, "Universities Academic Staff Union (UASU) v Kenyatta University (Employment and Labour Relations Petition E173 of 2022) [2024] KEELRC 2447 (KLR)", Case Analysis (2024). Petition (application dated 6th October 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2447/eng@2024-10-04

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