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ELRCPartially AllowedPetition E005 of 2020

Kenya Universities Staff Union v Egerton University & another (Petition 88 of 2020) [2024] KEELRC 80 (KLR)

Employment and Labour Relations Court
31 January 2024
1,886 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that public universities cannot cut unionised staff salaries unilaterally, even during a financial crisis—collective bargaining must come first.

What this practically means

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Executive summary

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The Petitioner, a trade union representing unionisable staff in public universities, petitioned against Egerton University (1st Respondent) and Laikipia University (2nd Respondent) over circulars dated May 11 and May 13, 2020 unilaterally reducing members' salaries by up to 40% effective April 2020, during the Covid-19 pandemic. The Petitioner alleged violations of Articles 10, 41, 47 and 232 of the Constitution and Section 10(5) of the Employment Act, seeking declarations of unconstitutionality and a permanent injunction. Interim conservatory orders had been granted by Ruling of February 25, 2022. The Petition against the 2nd Respondent was withdrawn, confirmed on March 10, 2023. Against the 1st Respondent, the Court held that salary reduction is a collective bargaining subject falling within the Recognition Agreement and CBA in place with the union through IPUCCF. The University Management Board could not unilaterally impose a pay cut notwithstanding its documented financial distress, including deficits, frozen bank accounts and reduced government funding. The consultative meeting of May 4, 2020 with chapter representatives did not amount to social dialogue under the April 20, 2020 Tripartite MOU, and the representatives had no mandate to negotiate. The Court declared the Notice of May 13, 2020 unconstitutional, null and void, granted a permanent injunction restraining its implementation without the union's involvement within existing collective bargaining structures, and awarded costs to the Petitioner, with no order on costs as regards the withdrawn Petition against the 2nd Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the Notice to All Staff Members, dated May 13, 2020, issued by the 1st Respondent, resulted in constitutional, statutory and contractual violations, as claimed by the Petitioner
  2. 2.whether the prayers sought are merited

Key legal issues

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01

Whether unilateral salary reduction by public university violated collective bargaining rights

Holding

Yes - the Notice was unconstitutional, null and void as it bypassed IPUCCF and existing collective bargaining structures

Reasoning

Salary variation is a collective bargaining subject. The employer was bound by the Recognition Agreement and CBA with the union through IPUCCF. Its Management Board could not unilaterally resolve a 40% pay cut; consultations with chapter representatives outside the CBA structures did not qualify as social dialogue under the Tripartite MOU, and the representatives lacked mandate to negotiate. Unilateral action risked disturbing industrial harmony across public universities.

p. 5
02

Whether financial hardship justified unilateral variation

Holding

No - financial challenges had to be addressed through collective bargaining structures

Reasoning

While the 1st Respondent faced genuine liquidity problems including reduced capitation, deficits and frozen accounts, the law obliged it to act through existing collective bargaining mechanisms rather than by a Management Board resolution.

p. 4

Legal principles established

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  • Where a collective mechanism exists for variation of terms and conditions of service of unionisable staff, that mechanism must be followed at all times
  • Unilateral reduction of salaries of unionisable employees violates the constitutional right to collective bargaining under Article 41

Court orders

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  1. 1.The Petition against the 2nd Respondent shall be marked as withdrawn, with no order on the costs
  2. 2.The Notice issued by the 1st Respondent to Staff, dated May 13, 2020 on salary reduction, is declared unconstitutional, null and void
  3. 3.A permanent injunction is granted restraining the 1st Respondent from implementing the said Notice without involvement of the Petitioner, within the existing collective bargaining structures
  4. 4.Costs to the Petitioner payable by the 1st Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 10, 41, 47 and 232 of the Constitution; Section 10(5) of the Employment Act

Relief refused

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Declaration of infringement under Articles 10, 47 and 232 not expressly granted; relief granted only on Article 41

The Court grounded its holding on the violation of the right to collective bargaining; no separate declarations under the other articles were made in the final orders

p. 5

Relief against the 2nd Respondent

Petition withdrawn by the Petitioner

p. 5

Costs

Costs to the Petitioner payable by the 1st Respondent; no order on costs as regards the 2nd Respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Where there exists a collective mechanism for variation of terms and conditions of service, of unionisable staff, that mechanism must be followed at all times.
p. 4Collective bargaining - mandatory use of existing structures
The Petition against the 2nd Respondent shall be marked as withdrawn, with no order on the costs.
p. 5Final orders - withdrawal against 2nd Respondent
The Notice issued by the 1st Respondent to Staff, dated May 13, 2020 on salary reduction, is declared unconstitutional, null and void.
p. 5Final orders - declaration
A permanent injunction is granted restraining the 1st Respondent by itself, Agents or Whomsoever acting on behalf of the 1st Respondent, from implementing the said Notice, without involvement of the Petitioner, within the existing collective bargaining structures.
p. 5Final orders - permanent injunction

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, "Kenya Universities Staff Union v Egerton University & another (Petition 88 of 2020) [2024] KEELRC 80 (KLR)", Case Analysis (2024). Petition E005 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/80/eng@2024-01-31

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