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ELRCOtherCause No 171 of 2008· [2013] KEELRC 214 (KLR)

Kenya Union of Employees of Voluntary & Charitable Organisations v Tailors & Textiles Workers Union [2013] KEELRC 214 (KLR)

Industrial Court of Kenya
13 August 2013
MNMathews N. Nduma
736 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan union's right to sue for a worker rests on that worker's membership, not on any recognition agreement with the employer.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection in a first-instance Industrial Court dispute over the termination of service of Mr. Cosmas Okong'o Orowe, with the Kenya Union of Employers of Voluntary and Charitable Organisations (KUEVACO) as Claimant and the Tailors and Textiles Workers Union as Respondent. Counsel for the Respondent, Mrs. J.A. Guserwa, objected that the Claimant had no right to sue on behalf of the grievant absent a Recognition Agreement, and, raised from the bar, that no evidence showed the grievant was a member of the Claimant union, so the Claimant lacked locus standi. The court found the Recognition Agreement executed on 25th July 2002 was annexed to the Amended Statement of Claim and dismissed the objection to its validity as unfounded. On membership, the court applied the principle from Kenya Union of Domestic, Hotels, Education Institutions, Hospitals & Allied Workers v Guii Mwalimu Sacco Hotel Ltd that a union's locus standi to represent an employee is founded on membership and does not depend on the employer having a recognition agreement with the union. However, because the membership objection was raised from the bar rather than pleaded, the Claimant was denied the opportunity to tender evidence that the grievant was a registered member who paid dues directly. Holding the objection not a pure point of law, the court instead of dismissing the claim granted the Claimant fourteen days to file a reply specifically addressing membership, so the claim proceeds to a hearing on the merits. It is so ordered.

Key legal issues

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01

Whether the absence of a Recognition Agreement annexed to the served Amended Statement of Claim defeated the Claimant's suit

Holding

The submission was unfounded as the Recognition Agreement dated 25th July, 2002 was annexed to the Amended Statement of Claim and the court had no reason to doubt its validity

Reasoning

The court found the Recognition Agreement was executed on 25th July 2002 by the Secretary Generals of both parties and annexed to the Amended Statement of Claim marked 'A'. The Respondent's assertion that none was annexed to the served copy was treated at worst as an omission. The objection on this basis was dismissed.

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02

Whether the Claimant union lacked locus standi to represent the grievant absent pleaded and proved membership

Holding

The preliminary objection failed because it was not a pure point of law and the Claimant had no opportunity to tender evidence on membership; leave to plead membership was granted instead

Reasoning

The court accepted the principle that a union's locus standi to represent an employee rests on membership. However, the objection was raised from the bar, denying the Claimant the chance to plead and prove membership. Fairness dictated granting leave to file a reply on membership within 14 days, so the claim proceeds to a hearing on the merits.

p. 2

Legal principles established

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  • Locus standi of a union to represent an employee is founded on membership, and a union has capacity to represent a registered member regardless of whether the employer has a recognition agreement with the union
  • The fact of membership needs to be specifically pleaded in the statement of claim because it gives a union the right of representation in an area otherwise reserved for advocates of the High Court

Court orders

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  1. 1.Dismissal of the Respondent's submission challenging the validity of the Recognition Agreement dated 25th July, 2002
  2. 2.Leave granted to the Claimant to file a reply specifically addressing the matter of the grievant's membership, within fourteen (14) days from the date of the Ruling

Authorities

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Cases cited (1)

  • Kenya Union of Domestic, Hotels, Education Institutions, Hospitals & Allied Workers vs. Guii Mwalimu Sacco Hotel Ltd
    Industrial Court of Kenya Cause No. 2040 and 1703 of 2013
Jurisdiction invoked
Jurisdiction of the Industrial Court of Kenya over the dispute on termination of service of Mr. Cosmas Okong'o Orowe

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, "Kenya Union of Employees of Voluntary & Charitable Organisations v Tailors & Textiles Workers Union [2013] KEELRC 214 (KLR)", Case Analysis (2013). Cause No 171 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/214/eng@2013-08-13

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