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ELRCDismissedNot stated in judgment· [2025] KEELRC 2225 (KLR)

Universities Academic Staff Union v Kirinyaga University (Cause E045 of 2022) [2025] KEELRC 2225 (KLR)

Employment and Labour Relations Court
23 July 2025
DMD. K. Njagi Marete
773 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment and Labour Relations Court confirmed that workers and unions can go straight to court without first exhausting conciliation, especially where the other side refuses to cooperate.

What this practically means

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Executive summary

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This Employment and Labour Relations Court ruling by D. K. Njagi Marete, Judge, delivered on 23rd July 2025, determined a preliminary objection dated 4th October 2024 by the Respondent seeking to strike out the Claimant's Memorandum of Claim dated 26th January 2022. The objection contended that the suit offended Sections 62(1) and 73 of the Labour Relations Act, Rule 5(3) of the ELRC (Procedure) Rules, and Section 9(2) of the Fair Administrative Action Act because the Claimant failed to report the trade dispute to the Cabinet Secretary for Labour for conciliation before approaching the court. The Respondent relied on Kenya Shoe & Leather Workers Union v Technoplast Ltd, the Supreme Court's decision in Kenya Ports Authority v Joseph Makau Munyao, Geoffrey Muthinja, the Kenya School of Law exparte decision, and BIFU v KCB. The Claimant countered that the Respondent had historically disregarded conciliation, evidenced by a Certificate of Conciliation dated 8th October 2018 noting the Respondent's failure to attend a scheduled meeting, and cited Karen Blixen Camp Limited, holding Section 62 referral permissive, not mandatory. The court framed one issue: whether the Claimant was required to exhaust conciliation under Section 62 before filing suit. Following the binding Karen Blixen Camp precedent, the court held Section 62 is permissive and does not oust jurisdiction, and found the Respondent's non-cooperation constituted exceptional circumstances justifying bypass of ADR. The authorities relied on by the Respondent were distinguished as involving claimants who never initiated conciliation. The preliminary objection was disallowed for lack of merit, the matter was to proceed to hearing, and each party was ordered to bear their own costs of the application.

Key legal issues

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01

Whether conciliation under Section 62 of the Labour Relations Act is a mandatory precondition to filing suit

Holding

It is not mandatory; referral is permissive and does not oust the court's jurisdiction

Reasoning

The court adopted the Court of Appeal's binding decision in Karen Blixen Camp that Section 62 is permissive. It distinguished the authorities relied on by the Respondent, finding the Claimant had initiated conciliation efforts that were thwarted by the Respondent's non-cooperation, evidenced by a Certificate of Conciliation, which constituted exceptional circumstances excusing exhaustion.

p. 2
02

Whether exceptional circumstances justified bypass of alternative dispute resolution mechanisms

Holding

Yes - the Respondent's refusal to participate in conciliation and mediation constitutes exceptional circumstances

Reasoning

The court accepted the doctrine of exhaustion as sound but found the Claimant's Replying Affidavit and the Certificate of Conciliation dated 8th October 2018 credibly demonstrated the Respondent's unwillingness to engage in negotiations in good faith, excusing the bypass of ADR mechanisms.

p. 2

Legal principles established

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  • Section 62 of the Labour Relations Act, 2007 is permissive, not mandatory, and does not oust the jurisdiction of the court; exceptional circumstances such as a respondent's refusal to participate in conciliation justify bypassing alternative dispute resolution

Court orders

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  1. 1.Preliminary Objection dated 4th October 2024 disallowed for lack of merit
  2. 2.Matter to proceed to hearing
  3. 3.Each party to bear their costs of the application
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Labour Relations Act, 2007

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 v Kirinyaga University (Cause E045 of 2022) [2025] KEELRC 2225 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2225/eng@2025-07-23

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