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ELRCDismissedCause No 399 of 2013· [2015] KEELRC 97 (KLR)

Transport Workers Union (K) v Kimilili Hauliers Limited [2015] KEELRC 97 (KLR)

Employment and Labour Relations Court
11 December 2015
1,231 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court threw out a union's underpayment claim because it never named the affected workers or proved who was underpaid.

What this practically means

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Executive summary

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The Transport Workers Union (K) sued Kimilili Hauliers Ltd in a claim filed on 14 November 2013, alleging failure to comply with the Wages General Amendment Order 2010 by underpaying employees between 1 May 2010 and 30 April 2011. The Union elected to rely on the record without leading testimony, while the Respondent called its Human Resources Manager, who stated the Respondent had only 18 employees during the material period and produced pay slips. The Court had earlier directed the County Labour Officer, Uasin Gishu to inspect the Respondent's employment records; his report found only one of 18 employees had been underpaid, and that employee was paid the underpayment by cheque dated 17 March 2015. The Union rejected the report without convincing reasons. The Court also rejected a motion filed on 10 April 2015 seeking recognition as the union of 90 of the Respondent's employees, holding that Form S check-off forms serve recognition under section 54 of the Labour Relations Act and cannot found a wage claim, and that the motion was a belated afterthought. Documents filed with the Union's submissions were disregarded for non-compliance with basic evidence procedure. The Court found the Memorandum of Claim defective for failing to name the Grievants, their occupations, the amounts claimed and their remuneration, and that the Union had not rebutted the Respondent's list of employees. Accordingly, the Memorandum of Claim was dismissed with costs to the Respondent on 11 December 2015 in Nakuru.

Key legal issues

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01

Adequacy of the pleadings

Holding

The Memorandum of Claim was defective because it did not name the Grievants, state their occupations, the amounts of underpayments or their remuneration, and the Union did not cure the defect with testimony

Reasoning

The Court held that a union agitating for genuine members ought to plead the identities, designations, amounts claimed and earnings of each Grievant. Without these particulars the claim did not disclose a proper cause of action. The Union's election not to lead any testimony meant the defective pleadings were never shored up, dooming the claim regardless of the merits of the underpayment allegations.

p. 3
02

Use of Form S as a basis for claiming underpayments

Holding

Form S check-off forms are for satisfying recognition conditions under section 54 of the Labour Relations Act and cannot ground a claim for underpayments

Reasoning

The Union sought to introduce employee names through a belated motion seeking recognition, relying on Form S. The Court rejected this as an afterthought, holding that Form S serves the distinct statutory purpose of union recognition under section 54 and is not a vehicle for wage claims. The Respondent's unrebutted list of its 18 employees further undermined the Union's claim of about 90 employees.

p. 3
03

Weight of the County Labour Officer's report

Holding

The report, produced pursuant to a court-directed statutory inspection, stands unless convincingly rebutted; the Union gave no convincing reasons to reject it

Reasoning

The Court had directed the County Labour Officer, Uasin Gishu to inspect the Respondent's employment records. The Labour Officer enjoys extensive statutory powers under the Labour Institutions Act, 2007. His report found only one employee of 18 had been underpaid, and that employee had since been paid by cheque. The Union's rejection of the report was unsupported by convincing and sufficient grounds.

p. 3
04

Production of evidence and documents

Holding

Documents filed with submissions that should have been introduced as evidence earlier were disregarded; parties must adhere to basic rules on production of evidence

Reasoning

The Union filed several documents alongside its written submissions, some of which were properly evidence or exhibits that should have been introduced earlier through witnesses. The Court disregarded them, admonishing parties that despite the Court's simplified rules, basic procedural requirements on production of evidence exist to ensure equality of arms and give the other side advance notice and opportunity to respond to all evidence relied upon.

p. 2

Legal principles established

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  • A pleading in an employment claim must clearly set out the facts forming the cause of action, including the identities and particulars of those on whose behalf the claim is brought
  • Form S (check-off forms) serves recognition purposes under section 54 of the Labour Relations Act and cannot found a claim for underpayments
  • A report of a Labour Officer carrying out a statutory, court-ordered inspection must not be easily dismissed without convincing and sufficient grounds

Court orders

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  1. 1.The Memorandum of Claim filed on 14 November 2013 encompassing the Union's case is dismissed with costs to the Respondent

Authorities

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Legislation

  • Wages General Amendment Order2010 (Legal Notice No. 98 of 2010)
  • Labour Relations Actsections 48, 53, 54
  • Employment Act, 2007sections 10, 13, 20
  • Labour Institutions Act, 2007Not specified (powers of labour officers)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the employment dispute (Cause); no specific constitutional provision cited

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Transport Workers Union (K) v Kimilili Hauliers Limited [2015] KEELRC 97 (KLR)", Case Analysis (2015). Cause No 399 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/97/eng@2015-12-11

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