Universities Academic Staff Union (UASU) v Kenyatta University (Petition E173 of 2022) [2025] KEELRC 2443 (KLR)
The bottom line
#Kenyatta University violated lecturers' rights by changing their workload without consulting their union, but the court chose future talks over undoing the change.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petition is res judicata in relation to ELRC Petition No. E098 of 2024 (Itolondo v Kenyatta University)
- 2.Whether the petition is premature for failure to exhaust the dispute resolution mechanisms in the Recognition Agreement and CBA (constitutional avoidance)
- 3.Whether the fact that the impugned memo was already implemented renders the petition moot
- 4.Whether the Respondent's failure to consult the Petitioner before issuing the memo breached Articles 41 and 47 of the Constitution
- 5.What remedies, if any, should issue
Key legal issues
#Res judicata
The petition is not res judicata because the earlier petition (Itolondo v Kenyatta University) was dismissed on locus and not on the merits
The court considered Justice Ongaya's judgment in ELRC Petition No. E098 of 2024 and found that Ongaya J dismissed that petition solely on the petitioner's locus standi, without considering the merits. Since res judicata requires a decision on the merits between the same parties, the earlier dismissal did not bar the present petition by the union.
Breach of the right to fair labour practices and fair administrative action
The Respondent's failure to consult the Petitioner before unilaterally implementing the workload memo infringed Articles 41 and 47 of the Constitution
The Respondent did not deny implementing the memo without consulting the Petitioner, whose members were affected. Its justification - that the Kenyatta University chapter of UASU was non-operational due to leadership wrangles - did not excuse bypassing the union itself. Unilateral changes to terms of service breach the right to collective bargaining and fair labour practices under Article 41 and fair administrative action under Article 47.
Mootness/implementation
Implementation of the memo for over two years did not defeat the petition but weighed against reversal of the implementation
The court held that the Respondent's implementation of the memo did not cure the illegality committed against the union's members. However, because the memo had been in operation for over two years, reversing it would be counterproductive and disruptive to academic programmes. The appropriate remedy was prospective: structured engagement between the parties.
Legal principles established
#- An employer who unilaterally implements a memo affecting terms and conditions of service without consulting the recognised trade union infringes the union's members' constitutional rights under Articles 41 and 47
- Implementation of an unlawful decision does not cure the underlying illegality
- A prior petition dismissed on the ground of the petitioner's locus does not render a subsequent petition by the union res judicata where the merits were not determined
Court orders
#- 1.A finding that the Respondent infringed the Petitioner's constitutional rights under Articles 41 and 47 of the Constitution
- 2.An order that the Respondent engage the Petitioner within the next 6 months to reach a resolution on how the memo would best continue being implemented taking into consideration the views and rights of the Petitioner and its members
- 3.No order of costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 41 and 47 of the Constitution (fair labour practices and fair administrative action)
Relief refused
#Permanent injunction against implementation of the Memo Ref. KU/DVCACAD/CLR/VOL.7
The memo had already been implemented for over two years and reversing it would be counterproductive
Costs of the suit
In view of the nature of the petition
Costs
No order of costs - each party to bear own costs implicitly; 'In view of the nature of this petition, there would be no order of costs.'
Quotable passages
#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 view of the fact that the respondents admit not involving the petitioner's before making the unilateral decision to implement the memo Ref KU/DVCACAD/CLR/VOL7, it is my finding that the respondents infringed on the petitioner's constitutional rights under articles 41 and 47 of the Constitution.
It is however my view that reversing implementation of a memo already implemented over 2 years ago would be counterproductive. I therefore direct that the respondents do engage the petitioners within the next 6 months in order to reach a resolution on how the memo would best continue being implemented taking into consideration the view and rights of the petitioners and their members.
In view of the nature of this petition, there would be no order of costs.
Issues in the judgment
#The judgment inconsistently refers to the earlier petition number/case name ('ELRC Pet No E98/24 Holondo', 'ELRCPET/E098/2025', 'Dr. Wilfrida A. Itolodo'), and one passage cites 'Article 159 of the Constitution' through the Respondent's submissions; spelling of the third-party litigant's name varies throughout
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Universities Academic Staff Union (UASU) v Kenyatta University (Petition E173 of 2022) [2025] KEELRC 2443 (KLR)", Case Analysis (2025). Petition dated 6th October 2022 (ELRC Petition, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2443/eng@2025-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.