Kenya Union Of Employees Of Voluntary And Charitable Organisations (Kuevaco) v National Jua Kali Demonstration And Training Centre – Kariobangi [2013] KEELRC 731 (KLR)
The bottom line
#A Kenyan employment court dismissed a union's unfair termination claim because the worker was a casual employee and the union lacked proof he authorised the case.
What this practically means
#Executive summary
#Key legal issues
#Whether the grievant's employment was terminated
The court found no lawful termination arose; the grievant was a casual employee who was laid off when a security firm was hired, and in the absence of a termination, its legality does not arise.
The court declined to accept the respondent's assertion that the grievant absconded, since it contradicted clause 7 of the statement of response admitting a lay-off. However, it found the grievant was a casual employee throughout, so there was no termination whose legality could be assessed. Neither party clearly demonstrated the terms of departure.
Whether the claimant union had capacity to represent the grievant
The court doubted the union's authority, noting the grievant never featured as a party, did not testify, and the verifying affidavit was sworn by a union official.
The respondent argued the grievant was non-existent or had not instructed the union, and that the verifying affidavit by Odin Boaz Otieno was irregular absent proof of authority. The court applied Williams and Kennedy Limited v Post Bank Credit Limited, holding courts should not ignore evidence of lack of authority to sue on behalf of an absentee party.
Whether the grievant was a casual or permanent employee
The grievant was a casual employee under the repealed Employment Act, Cap 226, as demonstrated by the daily mode of payment and temporary terms shown in the annextures.
The applicable law was the Employment Act, Chapter 226 (now repealed), in force at the time of the alleged termination. Section 2 defines a casual employee as one paid at the end of each day and not engaged for longer than 24 hours at a time. Annextures A, C, E and F demonstrated daily payment for security guards and temporary terms of service, and the grievant adduced no evidence of permanent or continuous employment.
Entitlement to relief
The claim failed in its entirety and was dismissed with no order as to costs.
Having found no termination, casual status, and doubtful authority of the union to act for an absentee grievant, the court held the claim could not succeed. The court noted the matter had earlier been heard ex parte and an award of Ksh.766,689.05 made, but this was reviewed and overturned on the respondent's application.
Legal principles established
#- Courts ought not to ignore evidence of lack of authority either to bring or defend an action and give judgment in favour or against a party who is not in court.
- A casual employee under the (repealed) Employment Act is one paid at the end of each day and not engaged for a longer period than 24 hours at a time.
Court orders
#- 1.The claim is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Industrial Court of Kenya, Employment and Labour Relations jurisdiction under the Labour Institutions Act, Cause filed as a memorandum of claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union Of Employees Of Voluntary And Charitable Organisations (Kuevaco) v National Jua Kali Demonstration And Training Centre – Kariobangi [2013] KEELRC 731 (KLR)", Case Analysis (2013). Cause No. 743 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/731/eng@2013-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.