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ELRCOtherNot stated in judgment· [2015] KEELRC 528 (KLR)

Kenya Hotels and Allied Workers Union v Diani Sea Resort T/A Carslake Nominee Limited [2015] KEELRC 528 (KLR)

Industrial Court of Kenya
25 September 2015
JRJames Rika
1,222 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant Union filed a claim on behalf of its member, Jeremiah Ouma Onditi, a former employee of the Respondent Hotel, whose contract was terminated in circumstances the union and the member contend were unfair and unlawful. The union sought reinstatement or terminal dues and compensation for unfair termination. Conciliation before the Labour Officer, Mombasa County failed, paving the way for adjudication. The Respondent raised a preliminary objection on two grounds: first, that the union lacked legal standing to bring the claim on behalf of Mr. Onditi in the absence of a Recognition Agreement; and second, that Diani Sea Resort is a separate legal entity from Carslake Nominee Limited, so the Respondent was improperly sued. The Court held that recognition under Section 54 of the Labour Relations Act 2007 is aimed at conferring sole collective bargaining agency on a union representing a simple majority, and is not a prequalification for legal representation in court. Legal representation of individual employees flows from the union's constitution and the employee's individual membership, an aspect of the constitutional right of association, and Section 22 of the Industrial Court Act 2011 grants union representatives the right to represent members in court. The union, having taken up the dispute at conciliation and owning it, could not be a stranger to it. On misnaming, the Court held employees should not be shut out for describing their employer's legal structure wrongly; the remedy is simple amendment. The Court rejected the preliminary objection, amended the record to name Carslake Nominee Limited t/a Diani Sea Resort as respondent, directed the parties to schedule the main dispute for hearing, and made no order on costs.

Key legal issues

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01

Trade union standing to represent a member without a recognition agreement

Holding

The Claimant Union has standing; recognition under Section 54 is about collective bargaining and majority rights, not legal representation of individual members.

Reasoning

Section 54 of the Labour Relations Act 2007 concerns recognition for collective bargaining purposes where a union has recruited a simple majority. Legal representation of individual employees flows from the union's constitution and the employee's individual membership, an aspect of the constitutional right of association. Section 22 of the Industrial Court Act 2011 grants union representatives the right to represent members in court. The union participated in conciliation and owned the dispute, so it cannot be a stranger.

p. 2
02

Misnaming of the respondent employer

Holding

A claim cannot fail because the employer is misnamed; the court amends the record to reflect the correct name disclosed by the employer's advocate.

Reasoning

Employees rarely know the legal structure of their employers' businesses, which are frequently layered to avoid regulatory burdens. Requiring them to sift through these layers before filing would hamper correction of employment wrongs. Where the employer's advocate reveals the correct name, the consequence is a simple amendment rather than rejection of the claim.

p. 2

Legal principles established

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  • Recognition of a trade union under Section 54 of the Labour Relations Act is aimed at collective bargaining, not at enabling the union to represent members in court.
  • A trade union has the right to represent its members in court and file claims on their behalf in its own name, without recognition as a precondition.
  • Misnaming of an employer should be corrected by simple amendment rather than rejection of the claim.

Court orders

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  1. 1.The Preliminary Objection is rejected
  2. 2.The Record is amended, indicating the name of the Respondent as Carslake Nominee Limited t/a Diani Sea Resort instead of Diani Sea Resort t/a Carslake Nominee Limited
  3. 3.Parties to schedule the main dispute for hearing
  4. 4.No order on the costs

Authorities

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Legislation

  • Labour Relations ActSection 54
  • Labour Relations ActSection 62
  • Labour Relations ActSection 73
  • Industrial Court ActSection 22
  • Labour Institution ActSection 23 (repealed)
  • Constitution of KenyaArticle on access to justice; right of association

Cases cited (2)

  • Kenya Shoe & Leather Workers Union v. Falcon Turners Ltd
    [2013] e-KLR
  • Kenya Guards and Allied Workers Union v. Lavington Security Limited
    [2013] e-KLR
Jurisdiction invoked
Industrial Court Act 2011, Section 22; Labour Relations Act 2007, Sections 54, 62 and 73

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Kenya Hotels and Allied Workers Union v Diani Sea Resort T/A Carslake Nominee Limited [2015] KEELRC 528 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/528/eng@2015-09-25

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