Kenya Private Universities Workers Union v United States International University – Africa (Cause E594 of 2020) [2025] KEELRC 2157 (KLR)
The bottom line
#Kenya's Employment Court upheld a university's COVID-19 redundancies, confirming employers may re-organise genuinely and unions can sue for members without a recognition agreement.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the seven grievants were employed by the respondent
- 2.Whether the grievants' employment was terminated on account of redundancy and whether the reason was valid and genuine
- 3.Whether the respondent adopted a fair procedure in the redundancy, including consultation and selection criteria
- 4.Whether the termination by redundancy was unfair in substance or procedure and whether compensation is due, including claims for pay cuts and unpaid leave
- 5.Whether the claimant's witness (CW2) is entitled to payment for use of his pharmaceutical practice licence
- 6.Whether the claimant union has locus to represent the grievants absent a recognition agreement or CBA
Key legal issues
#Validity and genuineness of the redundancy reason
The redundancy was valid and genuine, driven by COVID-19 operational requirements and closure of the medical department
The Court found the respondent's finances were seriously affected by COVID-19, justifying downsizing and closure of auxiliary services including the medical department. Outsourcing of medical services after redundancy did not render the redundancy pretended, as the employer was entitled to re-organise for better economy, and the re-design was factual and genuine.
Fairness of the redundancy procedure
The respondent adopted a fair procedure, having consulted the union and the grievants and paid final dues including severance
The claimant's General Secretary confirmed the union attended two meetings prior to the redundancy and that the grievants were paid upon redundancy with notices given. The consultation requirement per Kenya Airlines v Aviation & Allied was met, and selection criteria did not arise as the entire medical department was abolished.
Locus standi of the union without a recognition agreement
The union was entitled to represent its members on individual contracts in the redundancy consultations and in court; recognition is only a precondition for collective bargaining
Relying on Modern Soap Factory v Kenya Shoe and Leather Workers Union, and other ELRC decisions, the Court held that a registered union whose constitution empowers it may institute claims on behalf of its members, and that a recognition agreement regulates engagement on terms of employment but is not the basis of representation in court.
Claim for refund of agreed salary cuts and unpaid leave during COVID-19
The claim failed; the salary cuts were agreed and it would be oppressive to require payment for periods the grievants were not working
The respondent paid salaries for 1.5 years while staff were not at work during COVID-19, and the salary cuts were a cost-effective measure agreed between the respondent and the claimant union or grievants. Humane exit considerations, such as continued medical cover and tuition waiver, were mitigating factors under section 49.
Legal principles established
#- An employer enjoys a prerogative to re-organise the enterprise provided the re-organisation is factual and not fictitious or pretended so as to unfairly disadvantage workers
- Recognition of a trade union by an employer is not a precondition for the union to represent its members in court; membership is the precondition
- Where a whole department is abolished in its entirety, selection criteria based on seniority and suitability do not arise
Court orders
#- 1.The suit is dismissed
- 2.Each party to bear its own costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act over employment and labour relations disputes
Relief refused
#Mandatory injunction to refund pay cuts on unionisable employees' wages and salaries
The salary cuts were agreed upon in the COVID-19 circumstances and the claim was found unjustified and oppressive
Adoption of the claimant's tabulation as correct dues to members and refund of salary cuts up to unfair redundancy
The redundancy was fair in procedure and substance and final dues were paid
Contempt of court for breach of the consent signed on 21.02.2022 and the MOU of 30.04.2020
No finding of breach; the redundancy complied with section 40 of the Employment Act
Payment of Kshs. 3,430,000/- for use of CW2's pharmaceutical practice licence for 69 months
No agreement for extra payment existed and the claim was neither pleaded nor proved
Costs
Each party to bear own costs of the suit
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The Court returns that the suit is liable to dismissal. Parties are in continuing or forming industrial relationship and each to bear own costs of the suit.
In conclusion the suit is hereby dismissed with orders each party to bear own costs of the suit.
the employer always enjoys a prerogative to re-organise the enterprise, provided, the re-organisation is factual and not fictitious or pretended as to unfairly disadvantage the workers in a pretended redundancy
Thus recognition was not a precondition for the union to validly represent the members being unionisable stafi of the respondent.
the termination by redundancy of the seven grievants was not unfair in procedure or substance
Issues in the judgment
#The Court refers to 'the petitioner substantially complied with provisions of section 40' although the matter is framed as a claim, not a petition, suggesting a drafting slip
The number of grievants is inconsistently stated - the pleading lists eight named grievants ('and others') while the judgment repeatedly refers to seven grievants
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Private Universities Workers Union v United States International University – Africa (Cause E594 of 2020) [2025] KEELRC 2157 (KLR)", Case Analysis (2025). Not stated on the face of the judgment (references to Cause No. 525/2020, Cause Nos. 1087/2017 and E878/2021 concern related matters). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2157/eng@2025-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.