Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment (Notice of Motion dated 28th August 2015)· [2015] KEELRC 167 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals And Allied Workers (KUDHEIHA) v British Army Training Unit Kenya [2015] KEELRC 167 (KLR)

Industrial Court (Employment and Labour Relations Court)
5 November 2015
1,688 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan employment court refused to review its earlier judgment, ruling a union without a recognition agreement cannot demand dues deductions or block an employer's works council.

What this practically means

#

Executive summary

#
The Claimant trade union, through a Notice of Motion dated 28th August 2015 supported by the affidavit of its Secretary General Albert Njeru, sought orders that its advocates come on record, that the Respondent employer be restrained from harassing its members, that the Respondent continue deducting union dues, and that the Court review its own judgment delivered on 10th June 2015 in which recognition had not been granted. The Claimant complained that the Respondent had convened elections for a works council, circulated a newsletter cajoling members to resign, and asked support staff to withdraw from the union, allegedly contrary to Article 41 of the Constitution. The Respondent, through Grounds of Opposition and a replying affidavit of Lucille Kirk, opposed the application, arguing the Court was functus officio, no review grounds were established under rules 16(1) and 32 of the Court rules, the supporting documents were illegally obtained, and that joining and recognising a union is regulated by section 54(1) of the Labour Relations Act. The Court held that the allegations of harassment, threats and intimidation had already been dealt with in the judgment, rendering the Court functus officio; that no new and important matter, error apparent on the face of the record or sufficient ground for review was established; that a works council is the employer's prerogative and cannot be equated to a trade union, but the union cannot direct the Respondent otherwise; and that deductions could be sought only by individual members writing directly to the employer absent a recognition agreement. The application was dismissed in its entirety, with each party bearing their own costs.

Key legal issues

#
01

Whether grounds for review under Rule 32 were established

Holding

No sufficient cause, new matter or error apparent on the face of the record was established to warrant review

Reasoning

The Court held that the matters raised - alleged harassment, threats and intimidation - had already been addressed in the judgment of 10th June 2015. Revisiting them would amount to the Court sitting on appeal over its own judgment. Review under Rule 32 requires new and important evidence, an error apparent on the face of the record or sufficient ground, none of which the Claimant demonstrated. The proper remedy was an appeal to the Court of Appeal.

p. 3
02

Whether a works council established by the employer infringes Article 41 or substitutes for the union

Holding

A works council is the employer's prerogative and cannot perform the statutory roles of a trade union, but the union cannot compel the employer to abandon it

Reasoning

The Court acknowledged that a works committee cannot be equated to a trade union, whose roles are defined by statute. However, membership of employees in the union is a matter of individual choice and cannot confer decision-making authority on the union within the employer's policy or operations. The union has no mandate to direct the Respondent on how to organise the meeting of employees' needs.

p. 3
03

Whether the Court could order continued deduction of union dues absent recognition

Holding

No; deductions could only be arranged by individual members directly writing to the employer, since the parties lack a recognition agreement

Reasoning

The Court noted the judgment had not granted the Claimant recognition. Section 54(1) of the Labour Relations Act, invoked by the Respondent, regulates recognition. Absent recognition, the union cannot itself direct or communicate deductions; individual members retain the option of writing directly to their employer to request salary deductions for the union's benefit.

p. 3

Legal principles established

#
  • Review requires new and important matter, an error apparent on the face of the record, or sufficient ground
  • Where a court has rendered judgment on matters raised again, its role is functus officio
  • A works council is the employer's prerogative and cannot be equated to a trade union whose roles are set out in statute
  • Union dues deductions cannot be channelled by a union absent recognition between the parties

Court orders

#
  1. 1.The application dated 25th August 2015 is dismissed in its entirety
  2. 2.Each party to bear their own costs

Authorities

#

Legislation

  • Industrial Court Act [Employment and Labour Relations Court Act]Section 16
  • Employment and Labour Relations Court (Procedure) RulesRule 16(1)
  • Employment and Labour Relations Court (Procedure) RulesRule 32(c), (d) and (e)
  • Constitution of Kenya, 2010Article 41
  • Labour Relations ActSection 54(1)
Jurisdiction invoked
Section 16 of the Industrial Court Act (Employment and Labour Relations Court Act) and rules 16(1) and 32(c), (d) and (e) of the Court rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals And Allied Workers (KUDHEIHA) v British Army Training Unit Kenya [2015] KEELRC 167 (KLR)", Case Analysis (2015). Not stated in judgment (Notice of Motion dated 28th August 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/167/eng@2015-11-05

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