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ELRCDismissedNot stated in judgment (Industrial Cause filed 15 June 2009)· [2013] KEELRC 778 (KLR)

Kenya Shipping Clearing & Warehouses Workers Union v Bobmill Industries Ltd [2013] KEELRC 778 (KLR)

Industrial Court of Kenya
27 September 2013
RSRadido Stephen
991 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 without a recognition agreement or proof of membership cannot sue on behalf of workers, so this retrenchment claim was thrown out.

What this practically means

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Executive summary

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The Kenya Shipping Clearing & Warehouses Workers Union filed a Memorandum of Claim on 15 June 2009 against Bobmill Industries Ltd alleging unlawful retrenchment of four grievants (Peter O. Nyabaga, Wycliffe Momanyi Onyiengo, Boniface Gachegu and Peter Morara Ondieki), turn boys allegedly terminated verbally on 4 May 2009, and claimed disturbance allowance, full compensation for job loss, trip allowance, safari allowance, final dues and severance pay. The Respondent denied retrenchment, pleaded a valid recognition agreement and CBAs with the Kenya Chemical & Allied Workers Union, and in the alternative alleged the grievants were casual employees who refused reassignment and stopped reporting to work. The cause was part-heard before Chemmuttut J, who left office before delivering his award; the file was allocated to Radido J, and after several mentions at which parties failed to appear, judgment was set for 13 September 2013 and delivered on 27 September 2013 in Mombasa. The court framed the issues as the Union's locus standi and whether the grievants were unlawfully retrenched. Holding that the Respondent had a recognition agreement with another union, whose CBA terms were incorporated into the grievants' individual contracts under section 59(1) and (3) of the Labour Relations Act, and that the Union offered no proof of membership, the court found the Union a stranger to the employment relationship lacking locus standi. The claim was dismissed with no order as to costs, and the file was ordered returned to the Nairobi registry.

Key legal issues

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01

Locus standi of the Union to institute proceedings for the Grievants

Holding

The Union lacked locus standi; it had no recognition agreement with the Respondent, no CBA, and presented no evidence that the Grievants were its members.

Reasoning

The Respondent had a valid recognition agreement with Kenya Chemical & Allied Workers Union and had concluded CBAs with it. By operation of section 59(1) and (3) of the Labour Relations Act, the CBA terms became incorporated into the individual Grievants' contracts. Only that union or the Grievants individually could pursue the dispute. The Union was a stranger to both the employment and contractual relationships, implicating privity of contract.

p. 2
02

Whether the Grievants were retrenched unlawfully

Holding

Not determined; the court declined to consider this and other issues once it found the Union lacked locus standi.

Reasoning

Because the Union had no capacity to bring the claim, the court found it unnecessary to evaluate the merits of the alleged retrenchment or the quantum of any relief. The claim was dismissed without delving into the substance of the retrenchment allegations or the Respondent's alternative plea that the Grievants were casual employees who refused reassignment.

p. 2

Legal principles established

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  • Where an employer has a recognition agreement and Collective Bargaining Agreement with one union, the CBA terms are incorporated into individual contracts of employees under section 59(1) and (3) of the Labour Relations Act, and only that union (or the employees themselves) may prosecute disputes arising from them.
  • A union without a recognition agreement and without proof of membership of the affected employees is a stranger to the employment relationship and lacks locus standi to commence proceedings.

Court orders

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  1. 1.The Cause is dismissed with no order as to costs
  2. 2.The Deputy Registrar to transmit the file back to the Nairobi registry after delivery of the judgment

Authorities

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Legislation

  • Labour Relations Actsection 59(1) and (3)
  • Employment Actgeneral (2007)
Jurisdiction invoked
Jurisdiction of the Industrial Court over the trade dispute stated in the Memorandum of Claim (Labour Relations Act / Employment Act, 2007 framework invoked)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Kenya Shipping Clearing & Warehouses Workers Union v Bobmill Industries Ltd [2013] KEELRC 778 (KLR)", Case Analysis (2013). Not stated in judgment (Industrial Cause filed 15 June 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/778/eng@2013-09-27

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