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ELRCPartially AllowedCause No. 223 of 2010 (as filed 3 November 2010)· [2014] KEELRC 1262 (KLR)

Munir Abubakar Masoud v Kenya Union of Commercial, Food & Allied Workers & 3 others [2014] KEELRC 1262 (KLR)

Industrial Court of Kenya
12 September 2014
2,410 words in judgment
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The bottom line

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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

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Executive summary

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The Claimant, a retired Kenya Revenue Authority officer who had served as Executive Officer of the Union, filed a 21-page Statement of Claim in November 2010 raising two distinct causes of action: first, complaints about the Union's governance and administration, including non-compliance with the Labour Relations Act, 2007, failure to render audited accounts and failure to register an autonomous branch for bank employees; secondly, employment claims arising from his engagement, a three month written contract dated 1 April 2009 which he challenged as discriminatory, unprocedural and signed under duress, and his termination effective 1 October 2009 by letter dated 15 October 2009. The dispute was determined on the record and written submissions. On governance, the Court held the Claimant moved prematurely, as such disputes should first go to the Registrar of Trade Unions or the Minister for Labour for conciliation, and that the Claimant, being neither a member nor an elected official, could not invoke Article 22 of the Constitution to establish locus standi; those allegations were dismissed. On employment, the Court held the written contract complied with the Employment Act, 2007 and that after its expiry on 30 June 2009 the Claimant continued on the same terms. His termination without notice, reasons or a hearing was found procedurally and substantively unfair, attracting section 49 remedies. The Court awarded Kshs 195,000/-, comprising five months' wages compensation (Kshs 150,000/-), one month's pay in lieu of notice (Kshs 30,000/-) and pro rata leave (Kshs 15,000/-), ordered a certificate of service within 7 days, and directed each party to bear their own costs.

Key legal issues

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01

Standing and premature litigation of trade union governance disputes

Holding

The Court declined to entertain the governance and administration claims because the Claimant bypassed statutory dispute mechanisms and lacked locus standi

Reasoning

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.

02

Validity of the written contract dated 1 April 2009

Holding

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

Reasoning

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.

p. 4
03

Employment status after expiry of the fixed term contract

Holding

Having continued working after expiry on 30 June 2009, the Claimant served on the same terms subject to statutory minimums

Reasoning

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.

p. 4
04

Fairness of the termination and remedies

Holding

The termination was procedurally and substantively unfair; compensation of five months' wages, notice pay and pro rata leave were awarded

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Dismissal of the allegations regarding the governance and administration of the 1st Respondent
  2. 2.Declaration that the termination of the Claimant's services was procedurally and substantively unfair
  3. 3.Respondent to pay the Claimant five months' wages as compensation of Kshs 150,000/-
  4. 4.Respondent to pay one month's pay in lieu of notice of Kshs 30,000/-
  5. 5.Respondent to pay pro rata leave of Kshs 15,000/-
  6. 6.Total award of Kshs 195,000/-
  7. 7.Respondent to issue a certificate of service to the Claimant within 7 days of the judgment
  8. 8.Each party to bear their own costs

Authorities

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Legislation

  • Labour Relations ActFifth Schedule; Parts II, V and VII
  • Industrial Court ActSections 12 and 15
  • Employment ActSections 35, 36, 41, 43, 45, 47 and 49(4)
  • Constitution of Kenya, 2010Articles 22 and 41
Jurisdiction invoked
Industrial Court Act, sections 12 and 15; disputes under the Labour Relations Act, 2007 and the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.