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ELRCDismissedELRC Petition (Nairobi), filed 01.07.2024

Itolondo v Kenyatta University (Petition E098 of 2024) [2025] KEELRC 484 (KLR)

Employment and Labour Relations Court
21 February 2025
2,967 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The petitioner, a senior lecturer at Kenyatta University and member of UASU KU Chapter, petitioned the ELRC seeking declarations that the respondent violated Articles 3, 10, 30, 41, 43 and 232 of the Constitution by unilaterally varying clause 5(a)(iv) of the 2013-2017 CBA through a memo dated 08.09.2022 revising teaching workload, and by incorporating a fourth teaching unit into performance contracts. She sought quashing of the memo and performance contracts and permanent stoppage of the additional unit until a new CBA was negotiated and registered. The respondent, through the replying affidavit of Professor Nelson Wawire, contended the petition was an abuse of process as a replica of UASU's earlier petition (ELRC Pet. No. E173 of 2022) and two earlier suits by the petitioner, that the memo did not increase workload beyond 40 hours weekly, that consultations occurred, and that the petition was overtaken by events with a new CBA under negotiation. The court found the dispute was a collective grievance affecting all union members, best ventilated by the union as a body corporate under section 20 of the Labour Relations Act, which had already filed a petition on the same impugned decision. The petition was also premature for bypassing the collective agreement's dispute resolution mechanism, including the Joint Negotiating Committee and arbitration, engaging the avoidance principle. The alleged Bill of Rights violations were not established. The petition was dismissed with each 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 petition is an abuse of court process as a replica of ELRC Petition No. E173 of 2022 filed by UASU
  2. 2.Whether the petitioner had locus to pursue a collective grievance belonging to the union
  3. 3.Whether the petition contravened the dispute resolution mechanism in the collective agreement (avoidance principle)
  4. 4.Whether the respondent violated Articles 3, 10, 30, 41, 43 and 232 of the Constitution by unilaterally varying the 2013-2017 CBA

Key legal issues

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01

Abuse of court process and duplicative litigation

Holding

The petition was an abuse of process because it challenged the same decision on the same grounds as the earlier petition filed by UASU, a body corporate with capacity to sue

Reasoning

The claim concerned a collective grievance affecting all union members, which the union had already ventilated in ELRC Petition No. E173 of 2022 under the recognition agreement and collective agreement. The petitioner, as an individual member, could not justify pursuing the same collective grievance personally. The union's corporate capacity under section 20 of the Labour Relations Act made it the proper party, rendering the individual petition duplicative and abusive.

p. 6
02

Exhaustion of contractual dispute resolution mechanism (avoidance principle)

Holding

The petition was premature because the petitioner disregarded the collective agreement's dispute resolution mechanism, including the Joint Negotiating Committee and arbitration

Reasoning

Clause 3 of the collective agreement vested interpretation in the Joint Negotiating Committee subject to arbitration by the ELRC. The petitioner said nothing about the Joint Negotiating Committee's role and did not exhibit the recognition agreement or the complete collective agreement. The court found the petition premature and abusive in circumstances where the union had already filed a petition over the same collective dispute.

p. 6
03

Whether the alleged constitutional violations were established

Holding

The alleged violations of the Bill of Rights were not established because the dispute was properly covered by the parties' agreements on dispute resolution

Reasoning

The court declined to reach the merits of the impugned memo and performance contracts, holding that the dispute was a collective grievance affecting all union members, best ventilated by the union under the agreements between the parties and applicable law. Leadership wrangles in the union did not suspend the agreed dispute resolution framework, and social dialogue included expeditious resolution of such disputes.

p. 6

Legal principles established

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  • A union, as a body corporate, is best placed to sue over collective grievances affecting its members, and an individual member cannot duplicate such a suit
  • The avoidance principle requires a party to exhaust dispute resolution mechanisms in a collective agreement before resorting to constitutional litigation

Court orders

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  1. 1.Judgment entered for the respondent against the petitioner for dismissal of the petition
  2. 2.Each party to bear own costs of the proceedings

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 22(2)(b) and 258 of the Constitution of Kenya, 2010 read together with Part II, section 4(2)(ii) of Legal Notice 117 of 2013 (invoked by the petitioner for standing)

Relief refused

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Declarations that the respondent violated Articles 3, 10, 30, 41, 43 and 232 of the Constitution

The alleged violation of the Bill of Rights was not established; the dispute is a collective grievance covered by the collective agreement's dispute resolution mechanism

p. 6

Quashing of the memo dated 08.09.2022 and the quarterly performance contracts

Court declined to delve into the merits because the dispute is a collective grievance best ventilated by the union, which had already filed a petition

p. 6

Permanent stoppage of implementation of the 3rd and 4th teaching units

Petition dismissed as an abuse of process and premature

p. 6

Costs

Each 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.

In conclusion judgment is hereby entered for the respondent against the petitioner for dismissal of the petition with orders each party to bear own costs of the proceedings.
p. 7Final orders - dismissal and costs
The union is a body corporate per section 20 of the Labour Relations Act, 2007 with capacity to sue and be sued in its name.
p. 6Union's capacity to sue over collective grievances
the Court finds that the instant petition is indeed an abuse of Court process in view of the earlier petition filed to challenge the impugned decision
p. 6Abuse of process
It appears to the Court that the petition is premature besides being abusive of due process of the court in the circumstances that, as already found, the union has already filed a petition to ventilate the collective dispute in issue.
p. 6Prematurity and avoidance principle
The alleged violation of the Bill of Rights is found not established in the circumstances of the instant petition.
p. 6Bill of Rights violation not established

Issues in the judgment

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minor

Judgment refers inconsistently to the impugned memo date

minor

Petition states the relief sought in prayer (c) refers to '2013/2027 2013-2017 Collective Bargaining Agreement', an apparent typographical inconsistency

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, "Itolondo v Kenyatta University (Petition E098 of 2024) [2025] KEELRC 484 (KLR)", Case Analysis (2025). ELRC Petition (Nairobi), filed 01.07.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/484/eng@2025-02-21

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