Titus Wamalwa Khaemba v Transport Workers Union (Kenya) [2014] KEELRC 909 (KLR)
The bottom line
#A Kenyan employer, even a trade union, cannot withhold an employee's earned salary, and fraud accusations must be pursued elsewhere.
What this practically means
#Executive summary
#Key legal issues
#Standing/authority of the General Secretary to swear affidavits and defend proceedings for the union
The General Secretary is an 'official' of the union under section 22 of the Industrial Court Act and section 39(c) of the Labour Relations Act and had capacity to act without NEC resolution
Section 22 of the Industrial Court Act permits a party to be represented by an office bearer or official. The Registrar of Trade Unions extract annexed by the claimant himself confirmed Simon Kigalu as Secretary General. Read with section 39(c) of the Labour Relations Act, this gave the General Secretary authority to commence and defend proceedings on behalf of the union. The court took notice of the register as the valid record of the union's officials.
Whether salaries were due and unpaid
Salary falls due at the end of each month served; the court found September and October 2013 salaries were paid, December salary was covered by a cheque issued 16th December 2013, leaving only January 2014 (and any unpaid dues) payable, plus unremitted NSSF and NHIF deductions
Section 18 of the Employment Act makes a wage due once the employee has served the agreed time. It was undisputed the claimant was salaried and paid monthly in arrears by bank transfer. The respondent's assertion that September and October salaries were paid was corroborated by the claimant's own bank statements. Non-payment carries consequences for statutory deductions to NSSF and NHIF, which the employer must remit.
Whether the respondent could stay or justify withholding of the claimant's salary on grounds of alleged fraud
No - the union constitution contains no sanction permitting salary withholding, and even if it did it would be subject to section 18 of the Employment Act; the fraud allegations must be pursued criminally and in Cause No.2011 of 2013
The court noted the respondent's constitution Rule 26 provides a disciplinary forum for members acting to the union's detriment, but none of those rules permits withholding salary. The alleged fraudulent NIC Bank account was in the name of a distinct entity ('Transport Workers Union Kenya Airport branch'), and the cheques in question were payable to the respondent union itself. The criminal complaints reported to Embakasi and Bamburi Police Stations should be pursued. The pending Cause No.2011 of 2013 overlapped and consolidation was directed.
Legal principles established
#- A union official acting as General Secretary has capacity under section 22 of the Industrial Court Act to represent the union in proceedings without separate NEC authority
- Salary becomes due and payable at the end of each month of service under section 18 of the Employment Act and, where due, must be paid; an employer's constitution cannot authorise withholding of salary
- Fraud, forgery and misappropriation allegations are criminal matters to be pursued in the proper forum and do not justify withholding earned wages
Court orders
#- 1.The stay granted to the respondent dated 11th February 2013 (as referred to in the ruling) is lifted
- 2.The application dated 31st January 2014 is granted to the extent that the claimant be paid his due salaries not remitted to date
- 3.The respondent to remit to the NSSF and NHIF all pending dues
- 4.Consolidation of Industrial Cause No. 2011 of 2013 with this cause for hearing and disposal
- Jurisdiction invoked
- Section 12 of the Industrial Court Act and Rule 16(1) and (2) of the Industrial Court Procedure 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.
- Nathan Mukewa v Alupe University College [2022] KEELRC 881 (KLR)[2022] KEELRC 881 (KLR)8 Feb 2022
Cite this brief
#Cite this brief
Caselaw, "Titus Wamalwa Khaemba v Transport Workers Union (Kenya) [2014] KEELRC 909 (KLR)", Case Analysis (2014). Industrial Cause (Claimant's Notice of Motion dated 31st January 2014; Respondent's application dated 7th February 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/909/eng@2014-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.