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ELRCStruck OutPetition filed 22nd December 2014 (number not stated in the judgment)· [2015] KEELRC 1225 (KLR)

Communication Workers Union & another v Communication Authority Of Kenya [2015] KEELRC 1225 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
23 January 2015
4,337 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a union's constitutional challenge, ruling trade unions cannot sue on behalf of management staff whose contracts are private disputes.

What this practically means

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Executive summary

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The Respondent, Communications Authority of Kenya, raised a preliminary objection against a Petition filed on 22nd December 2014 by the Communication Workers Union and its Secretary General, Benson Okwaro Okumu. The Petitioners challenged the Respondent Board's advertisement of promotions and restructuring of director and senior management positions, alleging a disguised redundancy targeting directors and contraventions of Articles 21, 41 and 236(4)(b) of the Constitution, and sought conservatory orders and declarations. The Respondent objected that the union, whose recognition agreement of 17th June 2011 covers only unionisable staff in job groups J, K and L, lacked locus standi to litigate on behalf of directors and managers excluded from union membership, relying on Mukisa Biscuit and various labour authorities. The Petitioners invoked Articles 3, 22, 258, 259 and 260, arguing that any person may enforce the Constitution against a public body, and relied on Mumo Matemu v Trusted Society. The court held the objection was a proper preliminary objection, that the union and its Secretary General had no sufficient interest in the management cadre's grievances, and, agreeing with the reasoning in Republic v Mwangi S. Kaimenyi ex parte KIPPRA, that breach of individual contracts of service is private contractual law, not public law, notwithstanding the Respondent's public character. Allowing the Petition would fuse labour and management and elevate contractual disputes into constitutional questions. The Petition was struck out with costs to the Respondent, the aggrieved individuals being free to pursue their own remedies.

Key legal issues

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01

Whether the Respondent's objection was a proper preliminary objection

Holding

It was; the objection on locus standi was a pure point of law which, if upheld, would dispose of the suit without ascertaining facts or exercising discretion.

Reasoning

The court applied the classic Mukisa Biscuit definition: a preliminary objection consists of a point of law pleaded or arising by clear implication out of the pleadings which, if argued as a preliminary point, may dispose of the suit. If the Petitioners had no locus standi, the Petition could be struck out and the suit disposed of, so the objection fit squarely within the doctrine.

p. 5
02

Whether the trade union and its Secretary General had locus standi to bring the Petition on behalf of management staff

Holding

They did not. The aggrieved parties were directors and senior managers excluded from the union's recognition agreement covering job groups J, K and L, and the union could not represent management.

Reasoning

Article 41 strikes a balance between capital and labour; unions exist to protect unionisable employees, while the employer is represented by a managerial cadre precluded from union membership. The Persons aggrieved were in managerial positions. Neither the union nor its Secretary General had a sufficient interest in enforcing good labour practice or the Constitution on behalf of the Respondent's management, and the Mumo Matemu expanded-locus approach did not assist them on these facts.

p. 6
03

Whether the contractual grievances of the management staff raised constitutional questions enforceable by any person under Articles 3, 22 and 258

Holding

No; the breach or threatened breach of individual contracts of service is a matter of private contractual law, not a public act, even though the Respondent is a public body.

Reasoning

The court, agreeing with Warsame, Otieno-Odek and Kantai JJA in the Mumo Matemu line as applied in Republic v Mwangi S. Kaimenyi ex parte KIPPRA, held that individual employment contracts create rights in personam with differing terms and benefits. The aggrieved individuals could sue personally. Elevating such contractual disputes into constitutional questions would allow trade unions to represent management, contrary to ILO obligations under Article 2.

p. 6

Legal principles established

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  • A trade union does not have locus standi to litigate, by way of constitutional petition, the contractual grievances of management staff whom it cannot represent; such disputes are matters of private contractual law, not public law, even where the employer is a public body.
  • A preliminary objection, per Mukisa Biscuit, is a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and may not be raised where facts must be ascertained or judicial discretion exercised.

Court orders

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  1. 1.The Petition is struck out
  2. 2.Costs of the Petition are awarded to the Respondent
Jurisdiction invoked
Petition under Articles 3, 21, 22 and 258 of the Constitution of Kenya 2010, decided as a first-instance matter; the dispute turned on the Respondent's preliminary objection on locus standi

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, "Communication Workers Union & another v Communication Authority Of Kenya [2015] KEELRC 1225 (KLR)", Case Analysis (2015). Petition filed 22nd December 2014 (number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1225/eng@2015-01-23

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