Republic v Egerton University & 3 others; Kibue (Interested Party); Ngari & another (Exparte Applicants) (Judicial Review Miscellaneous Application E001 of 2023) [2024] KEELRC 314 (KLR)
The bottom line
#Kenya's Employment Court blocked Egerton University from disciplining union officials for strike-related activities, protecting lawful union participation from employer discipline.
What this practically means
#Executive summary
#Key legal issues
#Whether the 17th October 2022 launch of the strike, before the 7-day notice lapsed, exposed the applicants to discipline
The court accepted that, having issued a strike notice, the applicants' conduct on 17th October 2022 may have been in contemplation of the protected strike set to commence on 18th October 2022 and was thus insulated under section 79(3) LRA
The court acknowledged that the law does not provide for a 'launch' of a strike prior to commencement, but held that a union is allowed some minimum conduct in contemplation or furtherance of a protected strike. Since a strike notice had actually been issued on 11th October 2022 for a strike effective 18th October 2022, the activities of 17th October were treated as conduct in contemplation of a protected strike, protected under section 79(3) of the Labour Relations Act.
Whether disciplinary proceedings against the applicants for union activities were lawful
No - participation in trade union activities is not a fair reason for disciplinary penalty under section 46 of the Employment Act and Article 41(2) of the Constitution
The court found the applicants were engaged in participation in activities of a trade union as officials of UASU Egerton Chapter. Section 46(d),(e) and (h) of the Employment Act and Article 41(2) of the Constitution protect such participation. The court also relied on ILO Conventions protecting workers against anti-union discrimination. Disciplining them during pendency of court-ordered negotiations was unfair.
Whether the court should intervene in the employer's internal disciplinary process
Yes - the disciplinary process was initiated for ulterior/irregular reasons, being a response to protected union activities during a conciliation process ordered by the court
Although respondents urged the court not to interfere with internal disciplinary processes, the court found the process was triggered by union activities related to the strike, was instituted during pendency of negotiations and conciliation, and was therefore irregular. Judicial review remedies lie where the decision-making process is tainted with illegality or procedural impropriety.
Legal principles established
#- An employer may not take disciplinary action against an employee for conduct in contemplation or furtherance of a protected strike
- Subjecting union officials to disciplinary proceedings for participation in union activities while court-ordered conciliation is ongoing is unfair and irregular
Court orders
#- 1.An order of prohibition restraining the respondents from proceeding with or undertaking disciplinary proceedings against the 1st and 2nd Ex parte applicants on account of grounds or charges contained in the letters dated 22nd December 2022 (EUAPD/18915/1569) and 4th January 2023 (EU/APD 18915/156)
- 2.No order of costs
- Jurisdiction invoked
- Section 8 & 9 of the Law Reforms Act, Order 52 Rule 1 and Order 53 Rule 3 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Egerton University & 3 others; Kibue (Interested Party); Ngari & another (Exparte Applicants) (Judicial Review Miscellaneous Application E001 of 2023) [2024] KEELRC 314 (KLR)", Case Analysis (2024). Judicial Review Application (Amended Notice of Motion dated 8th March 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/314/eng@2024-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.