Kenya Hotels And Allied Workers Union v Well-Come Inn Hotels T/A Malindi Investments Ltd & Another [2015] KEELRC 614 (KLR)
The bottom line
#Kenya's Industrial Court dismissed a hotel's attempt to throw out an 11-year-old labour dispute, ruling informal Labour Office proceedings stopped the limitation clock.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim, filed in 2013 over a 2001/2002 cause of action, is time barred
Not time barred; the claim is a continuation of informal dispute proceedings commenced on 12.6.2002 under the TDA, so time stopped running.
The claimant reported an informal dispute to the Labour office on 12.6.2002 under the TDA, and the proceedings continued until the Commissioner of Labour issued a certificate on 3.4.2012 and the Minister referred the dispute by Form 'H' dated 10.4.2012. The memorandum of claim of 17.9.2013 merely substantiated the issues already in dispute. The Court of Appeal in The Office Restaurant case upheld the position that time stopped running when informal dispute resolution under the TDA commenced.
Whether the 2nd Respondent, a Director of the 1st Respondent, was wrongly joined
No misjoinder; section 2 of the repealed Employment Act defines employer to include the agent, foreman, manager or factor of such person.
The Court applied the definition of 'employer' in the repealed Employment Act Cap 226, which expressly includes the agent, foreman, manager or factor of a company. On a balance of probability the 2nd Respondent, as Managing Director of the 1st Respondent, is properly enjoined and is not immune from the 1st Respondent's contractual obligations in the proceedings.
Whether the Claimant union lacks standing absent a Recognition Agreement
The union has standing; the grievants had individual rights to join and be represented by a union, and the P.O. is belated and an afterthought.
Section 80 of the repealed Constitution guaranteed individual employees the right to join a trade union, extending to representation by that union. The Respondent had acknowledged union representation through shop stewards and the Workers Committee, and never objected to the informal proceedings on standing. A Recognition Agreement is voluntary and cannot be the sole basis of a union's standing; the referred dispute had to proceed to the merits.
Legal principles established
#- A suit that is a continuation of proceedings commenced under the Trade Disputes Act is not time barred under the Limitation of Actions Act.
- Under the repealed Employment Act, an agent, foreman, manager or factor of an employer bears the employer's contractual obligations in employment proceedings.
- A Recognition Agreement is a voluntary document and cannot be the only basis upon which a trade union derives standing to represent its members.
Court orders
#- 1.The Preliminary Objection by the defence is dismissed
- 2.Costs of the Preliminary Objection awarded to the Claimant
- Jurisdiction invoked
- Section 14 of the Trade Disputes Act (repealed) - referral of the dispute by the Minister to the Industrial Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Hotels and Allied Workers Union & 22 others v Kentmere (1986) Limited t/a The Kentmere Club (Cause 1588 of 2015) [2022] KEELRC 1092 (KLR)[2022] KEELRC 1092 (KLR)6 May 2022
- Ondicho Meshack Rakamba v Kuldip Singh & 4 others [2019] KEELRC 48 (KLR)[2019] KEELRC 48 (KLR)29 Nov 2019applied
- Banking, Insurance & Finance Union (Kenya) v Maisha Bora Sacco Society Ltd [2018] KEELRC 809 (KLR)[2018] KEELRC 809 (KLR)26 Oct 2018
Cite this brief
#Cite this brief
Caselaw, "Kenya Hotels And Allied Workers Union v Well-Come Inn Hotels T/A Malindi Investments Ltd & Another [2015] KEELRC 614 (KLR)", Case Analysis (2015). Industrial Court Cause (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/614/eng@2015-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.