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ELRCDismissedNot stated in the judgment (consolidated with Mombasa Industrial Cause No. 148 of 2013)· [2015] KEELRC 1203 (KLR)

Amalgamated Union of Kenya Metal Workers v Central Electrical International Limited [2015] KEELRC 1203 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
5 February 2015
NMNzioki wa Makau
976 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court ruled that a union's right to sue cannot be challenged through a shortcut when the facts of worker representation are disputed.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection on 24th November 2014 contending that the Claimant union lacked locus standi to sue on behalf of workers because there was no recognition agreement with the Respondent and no evidence of membership, invoking Section 22 of the Industrial Court Act and relying on Communication Workers Union v Safaricom and Kenya Shipping Clearing & Warehouses Workers Union v Bobmill. It sought striking out of the suit without prejudicing employees' rights to sue personally. The Claimant opposed, invoking Section 22 of the Industrial Court Act and Section 73(3) of the Labour Relations Act, and relying on Kenya Hotels and Allied Workers v Big Five Brewers, arguing that recognition was not raised at conciliation and that documentary evidence cannot be used to deny workers representation. Nzioki wa Makau J first tested whether the objection was a genuine preliminary objection under the Mukisa Biscuits locus classicus. He held that a preliminary objection must be a pure point of law argued on assumed facts and cannot be raised where facts must be ascertained. Since the issue of the union's recognition and representation of the workers was central to the claim and to the consolidated Mombasa Industrial Cause No. 148 of 2013, it required analysis of evidence and could not be determined in limine. The objection was accordingly dismissed with costs to the Claimant, without prejudice to the merits of the capacity question at the trial of the suit.

Key legal issues

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01

Whether the Respondent's objection on the Claimant's locus standi was a proper preliminary objection

Holding

It was not a proper preliminary objection because the issue of recognition/representation is pleaded but requires analysis of evidence to ascertain the correct position, and cannot be determined in limine

Reasoning

Applying the Mukisa Biscuits definition, a preliminary objection must be a pure point of law. Here, the objection on capacity rested on whether the workers the Claimant purports to represent are members of the Union, an issue central to the consolidated recognition dispute and requiring evidence. Since facts are disputed, the objection fails the demurrer test and could not dispose of the suit at the threshold.

p. 2
02

Whether the Claimant Union lacked capacity under Section 22 of the Industrial Court Act due to absence of recognition

Holding

The court did not determine the merits of capacity; the objection was dismissed at the threshold as unfit for determination in limine

Reasoning

The Respondent argued the union had no recognition and no proven membership, relying on Communication Workers Union v Safaricom and Kenya Shipping Clearing & Warehouses Workers Union v Bobmill. The Claimant relied on Kenya Hotels & Allied Workers v Big Five Brewers, arguing documentary evidence cannot deny workers representation. The court found the authorities sound but inapplicable at the preliminary stage given the disputed factual matrix and the pending consolidated recognition cause.

p. 2

Legal principles established

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  • A preliminary objection must be a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where any fact has to be ascertained or judicial discretion exercised
  • A preliminary objection ought not to be raised where facts are disputed

Court orders

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  1. 1.The preliminary objection is dismissed with costs to the Claimant

Authorities

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Legislation

  • Industrial Court ActSection 22
  • Labour Relations ActSection 73(3)

Cases cited (4)

  • Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors Ltd
    [1969] E.A. 696
  • Communication Worker's Union v Safaricom Limited
    [2013] eKLR
  • Kenya Shipping Clearing & Warehouses Workers Union v Bobmill Industries Limited
    [2013] eKLR
  • Kenya Hotels and Allied Workers v The Big Five Brewers Limited
    Cause No. 391 of 2010 (unreported)
Jurisdiction invoked
Section 22 of the Industrial Court Act, 2011; Section 73(3) of the Labour Relations Act, 2007

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, "Amalgamated Union of Kenya Metal Workers v Central Electrical International Limited [2015] KEELRC 1203 (KLR)", Case Analysis (2015). Not stated in the judgment (consolidated with Mombasa Industrial Cause No. 148 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1203/eng@2015-02-05

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