Kenya Union of Commercial, Food and Allied Workers v Water Resource Management Authority & another [2015] KEELRC 740 (KLR)
The bottom line
#Kenya's Employment Court ruled that a dismissal claim is not automatically out of time if conciliation happened, and unions can sue for members even without recognition agreements.
What this practically means
#Executive summary
#Key legal issues
#Whether the limitation ground under Section 90 of the Employment Act could be determined as a preliminary objection
The objection fails because when the cause of action arose is not clear-cut; the grievant allegedly had not been issued with a termination letter and the dispute went through conciliation, requiring further investigation of facts.
The court acknowledged conflicting lines of authority on when time begins to run in employment claims (Benjamin Wachira Ndiithi vs Hawkins Wagunza Musonye). It held itself bound by its own decisions but entitled to distinguish them, adopting Hawkins Wagunza Musonye to the effect that conciliation and other non-adjudicatory mechanisms can affect limitation. Since the accrual date required factual enquiry, the limitation point could not dispose of the suit as a preliminary objection.
Whether the claimant union lacked locus standi for want of a recognition agreement and CBA under Sections 54 and 59 of the Labour Relations Act
The second limb of the objection is not tenable in law; recognition agreements and CBAs do not totally oust a trade union from litigating on behalf of recruited members.
While agreeing with the role of recognition agreements and CBAs under the Labour Relations Act, the court held it could not adopt the totality of the Communication Workers v Safaricom reasoning. The period before recognition is fraught with trade union activity, and Parliament could not have intended to lock out recruited members from remedy through the recruiting union, as Section 52 demonstrates. Establishing the labour relationship would also require factual enquiry.
Whether the preliminary objection satisfied the Mukisa Biscuit threshold
Both limbs require further interrogation and enquiry and therefore cannot stand as sustainable preliminary objections.
Applying Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors, a preliminary objection must be a pure point of law arguable on assumed facts. Where facts must be ascertained or judicial discretion exercised, the objection is improper. The court found the issues raised did not clearly support a preliminary objection and would require investigation of facts, borrowing its recent reasoning in Kenya Council of Employment Migration Agencies v Nyamira County Government & 10 others.
Legal principles established
#- A preliminary objection must be a pure point of law; it cannot be sustained where ascertainment of facts or further enquiry is required.
- Intervening circumstances such as conciliation under the Labour Relations Act, 2007 can affect the running of limitation time in employment disputes.
- Absence of a recognition agreement or CBA does not conclusively oust a trade union's capacity to litigate on behalf of its members.
Court orders
#- 1.The preliminary objection dated 8th June, 2015 is dismissed
- 2.Costs of the preliminary objection awarded to the Claimant/Respondent
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution (labour and employment relations jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Water Resource Management Authority & another [2015] KEELRC 740 (KLR)", Case Analysis (2015). Not stated in the judgment (Memorandum of Claim dated 11th November, 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/740/eng@2015-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.