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ELRCAllowedELRC Cause at Kakamega (memorandum of claim dated 23rd May, 2024)· [2025] KEELRC 297 (KLR)

Universities Academic Staff Union (UASU) Masinde Muliro University of Science & Technology (MMUST) Chapter v Masinde Muliro University of Science & Technology (MMUST) (Cause E018 of 2024) [2025] KEELRC 297 (KLR)

Employment and Labour Relations Court
6 February 2025
3,050 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a university cannot use its internal statutes to lower a retirement age agreed in a collective bargaining agreement.

What this practically means

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Executive summary

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The claimant trade union, through M. Kiveu Advocates, sued the respondent university seeking a declaration that the retirement age of academic staff is 74 years and injunctive and prohibitive orders restraining retirement at age 70. The union relied on a CBA executed on 15th January, 2020 (covering 1st July, 2013 to 30th June, 2017) whose Clause 30.0(ii) fixed compulsory retirement at 74 years. The respondent had issued retirement notices to six academic staff members in 2023 and 2024, relying on Statute XXXIX(9) of its 2022 Statutes, which fixed retirement at 70 years, and argued that statute supersedes the CBA. Interim orders had been granted by Keli J on 27th June, 2024. By consent the cause proceeded by written submissions. Held: university 'statutes' are internal administrative instruments, not Acts of Parliament; a registered CBA forms part of the employees' contracts of service and binds the parties under Section 59 of the Labour Relations Act until mutually revised. No evidence showed the CBA was amended, and the 2022 statute could not apply retroactively or alter terms without consultation, contrary to Sections 10(5) and 26 of the Employment Act and Article 41 of the Constitution. The cause was allowed: it was declared that the agreed retirement age is 74 years, the respondent was prohibited from retiring affected members before that age, and costs were awarded to the claimant.

Key legal issues

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01

Whether the respondent's Statute XXXIX (2022), setting retirement at 70 years, overrode the CBA setting retirement at 74 years

Holding

It did not. The CBA remains part of the contracts of service; the university statute is a unilateral managerial instrument that could not amend or repeal the mutually negotiated CBA, nor apply retroactively without consultation or consent.

Reasoning

The court distinguished university 'statutes' (internal administrative tools passed by the Council under Section 25 of the University Act) from Acts of Parliament. A CBA, once executed and registered under Section 59 of the Labour Relations Act, binds the parties and becomes part of the employment contracts, remaining in force until mutually revised. No evidence showed the CBA was repealed or revised. Applying the statute retrospectively violated natural justice and Article 41 labour rights since affected employees and the union were neither consulted nor engaged.

p. 5
02

Whether the unilateral change of terms of service violated the Employment Act

Holding

Yes. Section 10(5) of the Employment Act prohibits unilateral changes to terms of employment without consultation, and Section 26 directs adoption of terms more favourable to employees than statutory minimums.

Reasoning

The court held that the Employment Act provides only bare minimums, and parties may agree better terms, which must prevail under Section 26. No evidence was availed that the claimant or the affected members were consulted or engaged in formulating the 2022 statute, which unilaterally and unlawfully lowered the mandatory retirement age in breach of Section 10(5).

p. 6

Legal principles established

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  • University 'statutes' are internal administrative instruments, not Acts of Parliament, and a CBA forms part of the employees' contracts of service while a university statute does not.
  • A registered CBA binds the parties and cannot be amended or repealed unilaterally through a university statute; any purported unilateral repeal is void.
  • A university statute lowering retirement age cannot apply retroactively to employees governed by a subsisting CBA.

Court orders

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  1. 1.A declaratory order that the agreed age of retirement of the affected members of the claimant is 74 years
  2. 2.The respondent is prohibited and restrained from retiring the affected members of the claimant before reaching the agreed retirement age of 74 years
  3. 3.Costs of the cause to the claimant

Authorities

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Legislation

  • Labour Relations ActSection 59
  • Employment ActSection 26
  • Employment ActSection 10(5)
  • Masinde Muliro University of Science and Technology ActSection 25
  • Universities Actnot specified
  • Public Finance Management Actnot specified
  • Masinde Muliro University of Science & Technology Statutes, 2022Statute XXXIX (39)(9)
  • Constitution of KenyaArticle 41

Cases cited (1)

  • Kenya University Staff Union V Council of Jomo Kenyatta University of Agriculture & Technology & Another
    (2023) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Article 162(2) of the Constitution), the cause being a memorandum of claim enforcing a registered collective bargaining agreement

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) Masinde Muliro University of Science & Technology (MMUST) Chapter v Masinde Muliro University of Science & Technology (MMUST) (Cause E018 of 2024) [2025] KEELRC 297 (KLR)", Case Analysis (2025). ELRC Cause at Kakamega (memorandum of claim dated 23rd May, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/297/eng@2025-02-06

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