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ELRCPartially AllowedPetition dated 23.04.2024 (ELRC, Nairobi)

Morusoi & 34 others v Kenya Literature Bureau; Kenya Union of Printing, Publishing and Allied Workers (KUPRIPUPA) (Interested Party) (Petition E064 of 2024) [2024] KEELRC 1938 (KLR)

Employment and Labour Relations Court
26 July 2024
3,134 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court has ruled employers cannot pay staff differently just because they belong to a trade union.

What this practically means

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Executive summary

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The petitioners, employees of the Water Sector Trust Fund and members of the interested party trade union, petitioned claiming infringement of Articles 27 and 41 of the Constitution. They alleged the respondent operated two payrolls favouring employees coerced or persuaded to leave the union, failed to promote union members, withheld a 21-month increment of Kshs.16,938,100.71 pending conclusion of the CBA, and implemented human resource tools without public participation. The respondent, through the affidavit of its CEO Victor K. Lomaria, denied discrimination, attributed the CBA stalemate to the union's own litigation in ELRC E805 of 2021, and urged that the petition was sub judice and forum shopping. The Court held the public participation claim was time-barred under section 90 of the Employment Act, the instruments having taken effect in February 2018, and that the Public Service Commission had approved them. It found the petition distinct from the pending CBA cause and declined to strike it out as sub judice. On the evidence, the Court found the respondent conceded differential payment of unionisable employees based on union membership, constituting discrimination contrary to Articles 27 and 41 as read with section 5 of the Employment Act, informed by ILO principles and the Equal Remuneration Convention. However, the specific monetary claim failed for want of particulars and evidence; parties were directed to compute and pay amounts due by 01.10.2024, failing which interest accrues. Three declarations issued, an injunction against discrimination was granted, and the respondent was ordered to pay the petitioners' costs, the interested party bearing its own costs.

Questions the Court framed

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

  1. 1.Whether the respondent infringed the petitioners' rights under Article 27 (equality and freedom from discrimination) by operating two sets of payrolls and treating union members differently from non-members
  2. 2.Whether the respondent infringed Article 41 rights to fair labour practices and fair remuneration by failing to pay increments pending conclusion of the CBA
  3. 3.Whether the human resource instruments were implemented without public participation contrary to Article 10 of the Constitution and whether that claim is time-barred
  4. 4.Whether the petition is sub judice/forum shopping given the pending CBA cause ELRC E805 of 2021
  5. 5.Whether the petitioners are entitled to the specific monetary sum of Kshs.16,938,100.71 and other reliefs sought

Key legal issues

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01

Discrimination on account of union membership in remuneration and benefits

Holding

Established contrary to Articles 27 and 41 of the Constitution and section 5 of the Employment Act

Reasoning

The respondent conceded that, pending conclusion of the CBA, it did not award union members the due pay rise while conferring benefits on non-members. The Court found this differential treatment of unionisable employees based on union membership to be unfair discrimination undermining freedom of association and collective bargaining, applying ILO principles on non-discrimination and equal remuneration.

p. 6
02

Limitation on the public participation claim over human resource instruments

Holding

Time-barred; the claim was not granted

Reasoning

The instruments came into effect in February 2018. Under section 90 of the Employment Act, a continuing injury carries a 12-month limitation from cessation. Suit should have been filed by February 2019, and after about seven years of implementation it would not be just to stay the instruments. The petitioners also did not rebut that the Public Service Commission approved the instruments.

p. 5
03

Whether the petition was sub judice or forum shopping given the pending CBA cause ELRC E805 of 2021

Holding

No; the causes of action are different

Reasoning

The pending CBA dispute concerns conclusion of the disputed collective agreement flowing from statutory conciliation, whereas the petition alleges rights violations arising from union membership discrimination. The petition does not by-pass the statutory conciliation process, though the pending case was directed to be expedited.

p. 5
04

Quantum of compensation for the discriminatory treatment

Holding

Amounts not awarded for want of particulars and evidence

Reasoning

Discrimination claims in salary, promotion and overtime require pleaded particulars and specific computations for each petitioner. The evidence on record established the discrimination but not the extent of the monetary disadvantage, so the Court directed parties to compute and reconcile the amounts due, payable by 01.10.2024 with interest if not paid.

p. 6

Legal principles established

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  • An employer may not pay unionisable employees differently, whether better or worse, solely on account of whether they are members or non-members of a trade union
  • Once a union negotiates terms and conditions of service, unionisable staff enjoy the same terms irrespective of union membership
  • Failure of public participation over workplace instruments is a continuing injury subject to the 12-month limitation period under section 90 of the Employment Act from cessation of the injury

Court orders

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  1. 1.Declaration that the respondent infringed the petitioners' rights under Article 27 of the Constitution (equality and freedom from discrimination)
  2. 2.Declaration that the respondent infringed the petitioners' rights under Article 41 of the Constitution (fair labour practices, fair remuneration, trade union rights)
  3. 3.Declaration that the respondent's unionisable employees holding same position, grade or roles shall not be treated differently in remuneration, allowances, overtime, promotions or other terms on account of union membership, with discrepancies to be removed and amounts due computed and paid by 01.10.2024, failing which interest at Court rates from the date of judgment until full payment
  4. 4.Parties to compromise or reconcile their positions for purposes of order (1)
  5. 5.Injunction restraining the respondent from discriminating against the petitioners in respect of employment contracts, participation, pension scheme, dispute resolution, training, increments, working conditions, promotions, salary scale, overtime allowances at 1.5 times regular hourly pay, fringe benefits and other fair labour practices
  6. 6.Respondent to pay the petitioners' costs of the petition; the interested party to bear its own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Constitution of Kenya, 2010 - Articles 27, 41 and 10 (fundamental rights and fair labour practices), Employment Act, 2007 and the Labour Relations Act, 2007

Relief refused

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Compensation of Kshs.16,938,100.71 being 21 months' salary increments (prayer (c))

The claim was not supported by particulars and evidence for each petitioner; parties were directed to compute and reconcile the amounts due

p. 6

Injunction restraining implementation of the respondent's human resource tools pending public participation (prayer (e))

The instruments took effect in February 2018 and the claim was time-barred; in any event the Public Service Commission had approved the instruments

p. 5

Costs

The respondent to pay the petitioners' costs of the petition and the interested party to bear own costs of the proceedings

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.

The Court returns established discrimination at work contrary to Articles 27 and 41 of the Constitution as read with section 5 of the Employment Act.
p. 6Finding of discrimination
It is discriminatory for the respondent to advantageously pay or otherwise confer employment benefits or opportunities to unionisable employees not being union members than those being members of the union – simply on account that the CBA has not been concluded or the disadvantaged employees are members of the union.
p. 6Union-membership-based differential pay is unfair discrimination
Such difierential treatment would amount to a classical unfair discrimination at work undermining the right to associate and to collectively bargain.
Doctrine of unfair labour practice
The cause of action in that respect appears time barred and inordinately belated.
p. 5Limitation on public participation claim
The declaration that the respondent’s unionisable employees holding same position, grade or roles at work shall not be treated difierently in terms of remuneration or salary, allowances, overtime payment, promotions, and other terms, conditions or opportunities at work on account of being members or not members of the trade union
p. 7Final orders - declaration and equalisation
The respondent to pay the petitioners’ costs of the petition and the interested party to bear own costs of the proceedings.
p. 7Costs order

Issues in the judgment

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minor

Prayers (g) and (h)... prayers (g) duplicated and last prayer on costs appears as (h) but is the same text as (g)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Morusoi & 34 others v Kenya Literature Bureau; Kenya Union of Printing, Publishing and Allied Workers (KUPRIPUPA) (Interested Party) (Petition E064 of 2024) [2024] KEELRC 1938 (KLR)", Case Analysis (2024). Petition dated 23.04.2024 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1938/eng@2024-07-26

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