Union Of Kenya Civil Servants v Principal Secretary, Ministry of Tourism and Wildlife & another [2021] KEELRC 1642 (KLR)
The bottom line
#The Employment Court dismissed a union's challenge to closing Utalii Hotel, ruling the petition was premature and employers may make commercial decisions without public participation.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over the dispute
The Court has jurisdiction; the Petitioner is a trade union with members in the 2nd Respondent and a recognition agreement, engaging section 12 of the ELRC Act
The Court relied on Article 162(2)(a) and section 12(1)(b) and (2) of the Employment and Labour Relations Court Act, which confers exclusive original jurisdiction over disputes between employers and trade unions. Since the Petitioner is a registered trade union with members working for the 2nd Respondent and a recognition agreement, the dispute falls squarely within the Court's jurisdiction notwithstanding the 1st Respondent's objection.
Whether the Principal Secretary's letter of 20th April 2020 was ultra vires
Not proved ultra vires; the parent ministry has supervisory and policy direction powers under section 9 of the State Corporations Act
The Court accepted that section 9 of the State Corporations Act authorises the parent ministry to supervise a State Corporation and issue policy directions. The letter merely reiterated the findings made in the College's own submissions and initiated administrative action by the Council, which had not been acted upon. Absent proof that the directive was an error of law or beyond statutory power, illegality was not established.
Whether the closure decision violated Articles 10, 41 and 47 and the Employment Act
No violation proved; public participation is irrelevant to an employer's staffing and closure decisions, and fair administrative action provisions do not apply to private employment relationships
The Court found the Petitioner did not demonstrate how Article 10 (public participation) applies to an employment situation, nor that any member lost employment through the impugned letter. The non-renewal of lapsed fixed term contracts was lawful, and the closure was a commercial decision of an employer in a private employment relationship, outside the scope of Article 47 and the Fair Administrative Actions Act. Sections 35 and 40 of the Employment Act were not breached.
Prematurity of the petition
The petition was premature because the impugned letter had not been acted upon by the 2nd Respondent at the time of filing
The Council had not deliberated or passed any resolution to close the Hotel or satellite campuses or terminate any employees; no employees had been terminated. The Petitioner's claims rested on speculative future consequences of a directive that the College Council had placed on hold while seeking audience with the Ministry, so the dispute had not crystallised.
Legal principles established
#- A public body may only act as justified by positive law; every exercise of its power must be traceable to statute.
- An employer is under no obligation to renew a fixed term contract which has expired.
- The ELRC has jurisdiction over disputes between a trade union with a recognition agreement and an employer State corporation.
Court orders
#- 1.The petition is dismissed
- 2.There shall be no orders for costs
- Jurisdiction invoked
- Article 162(2)(a) and (3) of the Constitution and Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Union Of Kenya Civil Servants v Principal Secretary, Ministry of Tourism and Wildlife & another [2021] KEELRC 1642 (KLR)", Case Analysis (2021). Petition dated 24th April 2020 (ELRC Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1642/eng@2021-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.