Seth Panyako v Kenya Union of Domestic, Hotels,Educational Institutions, Hospitals and Allied Workers [2013] KEELRC 27 (KLR)

The Court held that once registered, a trade union becomes a quasi-corporation capable of suing and being sued, including for breach of the contract of membership. Recruiting members and collecting subscriptions creates a reciprocal obligation to represent members honestly and fairly. The old position that employees cannot sue their own association no longer holds in modern trade union law. Union dues are paid to ensure effective representation, comparable to lawyers' accountability to clients.

The Claimant's media address concerned collective workplace issues within his mandate as Chief Shop Steward. The Union's Chairperson publicly condemned the interdiction and undertook to engage the employer, yet nothing was done. The Union's allegation that the Claimant was establishing a rival union postdated the dismissal, and there was no evidence of the promised retainer Advocates' offer or of the National Executive Board considering support. The Union's conduct amounted to utmost bad faith.

The Court relied on Article 1 of ILO Workers Representatives Convention No. 135 and Section 55 of the Labour Relations Act to hold that Shop Stewards are not ordinary members. They act with the mandate of employees, enjoy special dispensation as co-managers of the labour force, and their unions must be notified before any disciplinary process against them and must fully engage to protect them from victimization.

The Court distinguished between the cause of action against the Union and against the Hospital, refusing compensation for unfair termination and future salaries which belong in the separate claim against the employer. In redressing the Union's breach of mandate, the Court exercised jurisdiction under the Industrial Court Act to award just and equitable general damages of Kshs. 850,000, taking into account that the separate claim against the Hospital may mitigate overall effects of dismissal.