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ELRCDismissedNot stated in judgment

Universities Academic Staff Union v Kirinyaga University (Cause E045 of 2022) [2025] KEELRC 2225 (KLR)

Employment and Labour Relations Court
23 July 2025
DMD. K. Njagi Marete
773 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Employment and Labour Relations Court confirmed that workers and unions can go straight to court without first exhausting conciliation, especially where the other side refuses to cooperate.

What this practically means

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Executive summary

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This Employment and Labour Relations Court ruling by D. K. Njagi Marete, Judge, delivered on 23rd July 2025, determined a preliminary objection dated 4th October 2024 by the Respondent seeking to strike out the Claimant's Memorandum of Claim dated 26th January 2022. The objection contended that the suit offended Sections 62(1) and 73 of the Labour Relations Act, Rule 5(3) of the ELRC (Procedure) Rules, and Section 9(2) of the Fair Administrative Action Act because the Claimant failed to report the trade dispute to the Cabinet Secretary for Labour for conciliation before approaching the court. The Respondent relied on Kenya Shoe & Leather Workers Union v Technoplast Ltd, the Supreme Court's decision in Kenya Ports Authority v Joseph Makau Munyao, Geoffrey Muthinja, the Kenya School of Law exparte decision, and BIFU v KCB. The Claimant countered that the Respondent had historically disregarded conciliation, evidenced by a Certificate of Conciliation dated 8th October 2018 noting the Respondent's failure to attend a scheduled meeting, and cited Karen Blixen Camp Limited, holding Section 62 referral permissive, not mandatory. The court framed one issue: whether the Claimant was required to exhaust conciliation under Section 62 before filing suit. Following the binding Karen Blixen Camp precedent, the court held Section 62 is permissive and does not oust jurisdiction, and found the Respondent's non-cooperation constituted exceptional circumstances justifying bypass of ADR. The authorities relied on by the Respondent were distinguished as involving claimants who never initiated conciliation. The preliminary objection was disallowed for lack of merit, the matter was to proceed to hearing, and each party was ordered to bear their own costs of the application.

Questions the Court framed

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

  1. 1.Whether the Claimant was required to exhaust conciliation under Section 62 of the Labour Relations Act before filing this suit

Key legal issues

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01

Whether conciliation under Section 62 of the Labour Relations Act is a mandatory precondition to filing suit

Holding

It is not mandatory; referral is permissive and does not oust the court's jurisdiction

Reasoning

The court adopted the Court of Appeal's binding decision in Karen Blixen Camp that Section 62 is permissive. It distinguished the authorities relied on by the Respondent, finding the Claimant had initiated conciliation efforts that were thwarted by the Respondent's non-cooperation, evidenced by a Certificate of Conciliation, which constituted exceptional circumstances excusing exhaustion.

p. 2
02

Whether exceptional circumstances justified bypass of alternative dispute resolution mechanisms

Holding

Yes - the Respondent's refusal to participate in conciliation and mediation constitutes exceptional circumstances

Reasoning

The court accepted the doctrine of exhaustion as sound but found the Claimant's Replying Affidavit and the Certificate of Conciliation dated 8th October 2018 credibly demonstrated the Respondent's unwillingness to engage in negotiations in good faith, excusing the bypass of ADR mechanisms.

p. 2

Legal principles established

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  • Section 62 of the Labour Relations Act, 2007 is permissive, not mandatory, and does not oust the jurisdiction of the court; exceptional circumstances such as a respondent's refusal to participate in conciliation justify bypassing alternative dispute resolution

Court orders

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  1. 1.Preliminary Objection dated 4th October 2024 disallowed for lack of merit
  2. 2.Matter to proceed to hearing
  3. 3.Each party to bear their costs of the application

The bench

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

DM
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Labour Relations Act, 2007

Relief refused

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Strike-out of the Claimant's Memorandum of Claim

The court found Section 62 of the Labour Relations Act is permissive, not mandatory, and that the Claimant demonstrated exceptional circumstances justifying bypass of conciliation

p. 2

Costs

Each party shall bear their costs of the application.

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 light of the foregoing, I am inclined to disallow the Preliminary Objection dated 4th October, 2024 for lack of merit. The matter shall proceed to hearing and each party shall bear their costs of the application.
p. 2Final orders - dismissal of preliminary objection
The Court of Appeal in Karen Blixen Camp Limited explicitly held that Section 62 is permissive, not mandatory and does not oust the jurisdiction of the court.
p. 2Mandatory vs permissive nature of Section 62 conciliation
The Claimant has demonstrated that the Respondent's past conduct particularly its refusal to participate in conciliation and mediation constitutes exceptional circumstances justifying the bypass of alternative dispute resolution mechanisms.
p. 2Exceptional circumstances excusing exhaustion of ADR
The Respondent's reliance on Kenya Shoe & Leather Workers Union and Kenya Ports Authority is distinguishable as those cases involved claimants who failed to initiate conciliation altogether unlike the Claimant here, who made efforts that were thwarted by the Respondent's non-cooperation.
p. 2Distinction of authorities relied on by the Respondent

Issues in the judgment

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minor

Party names are not stated in full; the judgment identifies the parties only by role ('Claimant' and 'Respondent/Objector')

minor

The case number and station are not disclosed anywhere in the judgment

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, "Universities Academic Staff Union v Kirinyaga University (Cause E045 of 2022) [2025] KEELRC 2225 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2225/eng@2025-07-23

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