Munir Abubakar Masoud v Kenya Union of Commercial, Food & Allied Workers & 3 others [2014] KEELRC 1262 (KLR)
The bottom line
#A Kenyan court awarded a wrongfully dismissed union employee Kshs 195,000 but threw out his union governance complaints because he skipped required dispute-resolution steps.
What this practically means
#Executive summary
#Key legal issues
#Standing and premature litigation of trade union governance disputes
The Court declined to entertain the governance and administration claims because the Claimant bypassed statutory dispute mechanisms and lacked locus standi
The Fifth Schedule to the Labour Relations Act gives the Registrar of Trade Unions oversight over unions registered before 26 October 2007, while Parts II, V and VII direct internal disputes to conciliation by the Minister for Labour. Sections 12 and 15 of the Industrial Court Act also favour alternative dispute resolution. The Cause was not a Bill of Rights enforcement suit, so Article 22 did not apply, and the Claimant was an appointed employee, not a member or elected official.
Validity of the written contract dated 1 April 2009
The contract was valid; it contained the essential particulars required by the Employment Act and there was no proof of duress or of a superseding oral agreement
The contract identified the parties, their contacts, job description, commencement date, duration and remuneration. Missing particulars such as place and hours of work caused no prejudice, and statutory minimum terms are incorporated by default. The Claimant produced no evidence that he signed under duress or that an oral agreement overrode the written terms.
Employment status after expiry of the fixed term contract
Having continued working after expiry on 30 June 2009, the Claimant served on the same terms subject to statutory minimums
The three month contract expired by effluxion of time, but the Respondents allowed the Claimant to continue performing the same work without a new written contract, so the same terms persisted subject to statutory minimum standards of leave, house allowance and the like.
Fairness of the termination and remedies
The termination was procedurally and substantively unfair; compensation of five months' wages, notice pay and pro rata leave were awarded
The Respondents gave no month's notice, no reasons and no hearing, offending sections 35, 41, 43, 45 and 47 of the Employment Act and triggering section 49. Considering the short service and costs of litigation, five months' wages was appropriate. Notice pay of Kshs 30,000 and pro rata leave of Kshs 15,000 were admitted. A certificate of service is a statutory entitlement.
Legal principles established
#- Disputes over the management, administration and governance of a trade union should ordinarily be reported to the Minister for Labour for conciliation before approaching the Court
- Article 22 of the Constitution does not confer standing to litigate claims that allege mere contravention of statute or a private constitution rather than breach of Bill of Rights
- Where an employee continues to work after expiry of a fixed term contract without a new written contract, he continues serving on the same terms subject to statutory minimum standards
- Termination without notice, without reasons and without a hearing breaches sections 35, 41, 43, 45 and 47 of the Employment Act and attracts compensation under section 49
Court orders
#- 1.Dismissal of the allegations regarding the governance and administration of the 1st Respondent
- 2.Declaration that the termination of the Claimant's services was procedurally and substantively unfair
- 3.Respondent to pay the Claimant five months' wages as compensation of Kshs 150,000/-
- 4.Respondent to pay one month's pay in lieu of notice of Kshs 30,000/-
- 5.Respondent to pay pro rata leave of Kshs 15,000/-
- 6.Total award of Kshs 195,000/-
- 7.Respondent to issue a certificate of service to the Claimant within 7 days of the judgment
- 8.Each party to bear their own costs
- Jurisdiction invoked
- Industrial Court Act, sections 12 and 15; disputes under the Labour Relations Act, 2007 and the Employment Act, 2007
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.
- Otieno v Inter Security Services Ltd (Cause 660 of 2016) [2023] KEELRC 1794 (KLR)[2023] KEELRC 1794 (KLR)25 Jul 2023
Cite this brief
#Cite this brief
Caselaw, "Munir Abubakar Masoud v Kenya Union of Commercial, Food & Allied Workers & 3 others [2014] KEELRC 1262 (KLR)", Case Analysis (2014). Cause No. 223 of 2010 (as filed 3 November 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1262/eng@2014-09-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.