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Court of AppealDismissedCivil Appeal No. 37 of 2019· [2020] KECA 4 (KLR)

Modern Soap Factory v Kenya Shoe and Leather Workers Union [2020] KECA 4 (KLR)

Court of Appeal
7 February 2020
DMD.K. MusingaSKS. Gatembu KairuAMA.K. Murgor
1,868 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that trade unions can sue for their members in court even without a recognition agreement with the employer.

What this practically means

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Executive summary

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The appellant, Modern Soap Factory, appealed against a ruling of the Employment and Labour Relations Court at Mombasa (L. Ndolo, J.) delivered on 31st July 2018, which dismissed a preliminary objection challenging the standing of the respondent trade union to lodge a claim on behalf of two of the appellant's employees, Stephen Kimilu and Chitsala Mahendakazi, who alleged unfair termination. The appellant argued that, absent a recognition agreement with the union, the union lacked locus standi, invoking Section 54 of the Labour Relations Act and the requirement of sufficiency of interest. The Court of Appeal identified a single issue: whether a trade union without a recognition agreement may represent its members in court. Noting conflicting ELRC decisions on the point, the Court held that a registered union whose constitution empowers it has standing to sue for and represent its members; recognition agreements govern collective bargaining with the employer, not court representation, the two roles being distinct. The Court anchored its decision on Article 41 and Article 258(2)(d) of the Constitution and Section 22 of the Employment and Labour Relations Act, which expressly permits representation by union officials. The Court added that contested union membership is a question of fact requiring evidence and cannot be resolved by preliminary objection, citing Mukisa Biscuit. The appeal was dismissed with costs to the respondent. This judgment binds subordinate courts and the ELRC on the standing of trade unions lacking recognition agreements.

Key legal issues

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01

Locus standi of a trade union to represent members in the absence of a recognition agreement

Holding

A registered union empowered by its constitution has standing to sue for and represent its members without a recognition agreement.

Reasoning

The court noted conflicting ELRC positions on the question. Article 41 of the Constitution protects labour relations rights including joining a trade union; Article 258(2)(d) permits associations acting in the interest of members to institute proceedings; and Section 22 of the Employment and Labour Relations Act expressly allows representation by an office bearer or official of a party's trade union. Recognition, defined in Section 2 of the Labour Relations Act, governs collective bargaining engagement with the employer, not court representation. The two roles are distinct, and the learned Judge's conclusion could not be faulted.

p. 2
02

Whether union membership can be determined on a preliminary objection

Holding

Union membership is a question of fact requiring evidence where disputed, and cannot be resolved by preliminary objection.

Reasoning

Although the union's standing is not dependent on a recognition agreement, whether a particular employee is a member of the union is factual. Where membership is contested, evidence is required, following Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd on the nature of preliminary objections. Such a contested factual question is therefore unsuitable for summary determination on a preliminary objection.

p. 3

Legal principles established

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  • A registered trade union whose constitution so empowers it has locus standi to institute a claim on behalf of, and to represent, its members in court; a recognition agreement is not a precondition to that standing.
  • A recognition agreement regulates a union's engagement with an employer on terms and conditions of employment; it is not the basis of the union's right to represent members in court, recognition and representation being distinct roles.
  • Whether an employee is a member of a trade union is a question of fact requiring evidence where contested, and is not amenable to determination by way of preliminary objection.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 258(2)(d)
  • Labour Relations ActSection 2
  • Labour Relations ActSection 54
  • Employment and Labour Relations ActSection 22

Cases cited (5)

  • Law Society of Kenya vs. Commissioner of Lands and 2 others
    [2001] eKLR
  • Communication Workers Union vs. Safaricom Ltd
    [2014] eKLR
  • Kenya Shoe & Workers Union vs. Modern Soap Factory Ltd
  • Kenya Shoe & Leather Workers Union vs. Falcon Tanners Ltd
  • Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd
    [1969] E A 696
On appeal from
Employment & Labour Relations Court at Mombasa
ELRCC No. 615 of 2014
Jurisdiction invoked
First appellate jurisdiction under the Employment and Labour Relations Court Act / Court of Appeal Act over appeals from the ELRC (not expressly cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Modern Soap Factory v Kenya Shoe and Leather Workers Union [2020] KECA 4 (KLR)", Case Analysis (2020). Civil Appeal No. 37 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/4/eng@2020-02-07

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