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ELRCOtherNot stated in the judgment (Memorandum of Claim dated 11th November, 2014)· [2015] KEELRC 740 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Water Resource Management Authority & another [2015] KEELRC 740 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
24 July 2015
4,066 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Industrial Court (D.K.N. Marete, J) ruled on a preliminary objection dated 8th June 2015 raised in a claim dated 11th November 2014 concerning the alleged unfair/unlawful dismissal of grievant Irene Chepkemoi Chesiror. The respondent raised two grounds: first, that the suit was statute barred under Section 90 of the Employment Act, the termination having taken effect on 12th February 2010 and the claim filed on 6th January 2015 without leave; second, that the claimant union lacked locus standi for want of a recognition agreement and collective bargaining agreement as required by Section 54 of the Labour Relations Act, 2007. The respondent relied on Fred Mudave Gogo, Benjamin Wachira, Divecon v Samani and Communication Workers v Safaricom. The claimant opposed, submitting that the termination letter had not been issued at the time of filing, that the dispute had been through conciliation, and that both grounds required investigation of facts. The court identified a conflict between the Benjamin Wachira line of authority (time runs from the date of termination, with no discretion to extend) and Hawkins Wagunza Musonye (conciliation freezes the limitation clock). Declaring itself bound by its own decisions but entitled to distinguish them, the court adopted the Hawkins approach, holding that intervening circumstances such as conciliation can affect limitation. On locus standi, it declined to follow the totality of Communication Workers, holding Parliament could not have intended to lock out recruited union members from remedies. Applying Mukisa Biscuit, both limbs required factual enquiry and failed. The preliminary objection was dismissed with costs to the Claimant/Respondent.

Key legal issues

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01

Whether the limitation ground under Section 90 of the Employment Act could be determined as a preliminary objection

Holding

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.

Reasoning

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.

p. 5
02

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

Holding

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.

Reasoning

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.

p. 5
03

Whether the preliminary objection satisfied the Mukisa Biscuit threshold

Holding

Both limbs require further interrogation and enquiry and therefore cannot stand as sustainable preliminary objections.

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The preliminary objection dated 8th June, 2015 is dismissed
  2. 2.Costs of the preliminary objection awarded to the Claimant/Respondent

Authorities

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Legislation

  • Employment Act, 2007Section 90
  • Employment Act, 2007Section 4
  • Labour Relations Act, 2007Section 54
  • Labour Relations Act, 2007Section 59
  • Labour Relations Act, 2007Section 52
  • Labour Relations Act, 2007Section 4
  • Labour Relations Act, 2007Section 62(3)
  • Labour Relations Act, 2007Section 64(3)
  • Industrial Court Act, 2011Section 15
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (11)

  • Fred Mudave Gogo vs G4S Security Services (K) Ltd
    [2014] eKLR
  • Benjamin Wachira Vs. Public Service Commission & Another
    [2014] eKLR
  • Hilarion Mwabolo Vs Kenya Commercial Bank
    [2013] eKLR
  • Thuranira Karauri Vs Agnes Ncheche
    [1997] eKLR
  • Divecon Vs Samani
    [1995-1998] 1 EA 48
  • Communication Workers Vs. Safaricom
    [2014] eKLR
  • Kenya National Private Security Workers Union versus Lavington Security Limited
    (2013) eKLR
  • Hawkins Wagunza Musonye vs. Rift Valley Railways Limited
    Misc. Civil Application No.11 of 2014
  • Dodhia v National & Grindlays Bank Ltd and Another
    [1970] E.A. 195
  • Kenya Council Of Employment Migration Agencies v Nyamira County Government & 10 others
    [2015] eKLR
  • Mukhisa Biscuit Manufacturing Co. Ltd Vs. West End Distributors Company Limited
    (1969) E.A. 696
Jurisdiction invoked
Article 162(2)(a) of the Constitution (labour and employment relations jurisdiction)

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, "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.