Kirinyaga University UASU Chapter v Kirinyaga University & another (Employment and Labour Relations Petition E031 of 2023) [2025] KEELRC 187 (KLR)

ELRC judges have differed on the import of section 62(1), some treating it as mandatory and others permissive. The Supreme Court in Kenya Ports Authority underscored exhaustion under Part 8 of the Act but was not invited to decide whether the procedure was obligatory. The only superior court decision on the point is Karen Blixen Camp, which is binding on this court and held the provision permissive. Nevertheless, under article 159, exhaustion remains desirable where ADR can yield suitable results.

The Respondents argued that without a Recognition Agreement the Petitioner lacked locus standi. The court, relying on the Court of Appeal decision in Modern Soap Factory v Kenya Shoe and Leather Workers Union, held that a Recognition Agreement is required only for negotiating a CBA, not for representing members in court proceedings against an employer.

Whether the Petitioner is a registered chapter with capacity to act for UASU members is a matter of law and fact requiring evidence, and thus unsuitable for a preliminary objection. Further, the UASU JKUAT decision relied on by the Respondents was made under the repealed Trade Unions Act and the old constitutional dispensation; the 2010 Constitution liberalized locus standi through articles 22 and 258, entitling the Petitioner to allege violations of rights such as fair labour practices under article 41.

Although conciliation was not mandatory and the Petitioner had not demonstrated the mechanism was unsuitable, the court, in recognition of the Respondents' desire for conciliation and its own powers under section 15 of the ELRC Act, directed the parties to attempt conciliation, appointed a four-month timeline, and stayed proceedings pending the conciliator's report.