Bunny Industries Limited v Tailors & Textiles Workers Union
The bottom line
#Kenya's Court of Appeal confirmed that unions can sue for members without a CBA, and long-serving casual workers deserve permanent-employee benefits.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the union to represent grievants
The union had standing; grievants paid union dues of Ksh.200 monthly and section 22 of the Employment and Labour Relations Act permits representation by a union official.
The court found as a fact that the grievants were union members whose dues were deducted by the appellant and forwarded to the union. Section 22 of the Employment and Labour Relations Act allows representation by an office bearer of a trade union, and Article 41 protects labour relations. The absence of a Recognition Agreement or CBA was immaterial to standing. Membership of a union is a question of fact settled by evidence.
Evidence of one grievant sufficing for all
One witness could testify on behalf of all seven grievants in the representative claim; no prejudice arose.
Rule 9 of the ELRC (Procedure) Rules 2016 permits a suit to be instituted by one party on behalf of others with a similar cause of action, and rule 24 allows test suits. Particulars of all grievants were set out in Table 2 to the Memorandum of Claim. Section 20 of the Employment and Labour Relations Act requires the court to act without undue regard to technicalities, and the additional evidence would have been cumulative.
Functus officio after finding termination lawful
The trial court was not functus officio; it retained jurisdiction to determine all framed issues, including statutory entitlements.
Whether termination was lawful was only one of the issues framed. Having found the appellant breached the law by treating long-serving employees as casual, the court was bound to examine compliance with the Employment Act on annual leave, gratuity and notice pay. Findings on those entitlements were independent of the lawfulness of the termination, so the awards stood.
Legal principles established
#- A registered trade union whose constitution so empowers has standing to institute and prosecute a claim on behalf of its employee members before the ELRC, and whether an employee is a union member is a question of fact provable by evidence.
- A finding that termination of employment was lawful does not divest the trial court of jurisdiction to determine and award statutory employment entitlements arising from the mischaracterisation of employment as casual.
- Long-serving casual employees are deemed permanent under section 37(1) of the Employment Act and become entitled to statutory benefits including annual leave, gratuity and notice pay.
- In a representative suit, one claimant may testify on behalf of similarly-situated claimants whose particulars are pleaded; calling each claimant is unnecessary where their evidence would add nothing.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- On appeal from
- Employment and Labour Relations Court of Kenya at Nairobi
- ELRC Cause No. 1567 of 2010
- Jurisdiction invoked
- First appeal under Rule 29 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Okeyo v Maseno University & another (Cause E082 of 2023) [2024] KEELRC 2022 (KLR)[2024] KEELRC 2022 (KLR)25 Jul 2024followed
Cite this brief
#Cite this brief
Caselaw, "Bunny Industries Limited v Tailors & Textiles Workers Union", Case Analysis (2022). Civil Appeal 386 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/857/eng@2022-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.