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ELRCDismissedCause (ELRC) – application dated 28th September 2016· [2016] KEELRC 23 (KLR)

Kenya Union of Hair and Beauty Workers v Solpia Kenya Limited [2016] KEELRC 23 (KLR)

Employment and Labour Relations Court
3 November 2016
MMM. Mbaru
1,944 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a union's entire case because the man arguing it had no legal authority to represent the union.

What this practically means

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Executive summary

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The claimant union moved the court by Notice of Motion dated 28th September 2016 seeking urgent interim orders restraining the respondent from hiring new employees and from dismissing, harassing or victimising employees, and seeking reinstatement of dismissed employees pending hearing of the claim. The dispute arose from a Recognition Agreement signed on 27th July 2016 after a strike and lock-out, and from a subsequent document verification exercise in which several employees were found to hold forged certificates, prompting further strikes and disciplinary action. The respondent opposed the application, stating the dispute had been settled through a return-to-work agreement, all dismissed employees were reinstated, and the suit was overtaken by events. It further objected that Mr. Mwaura, who appeared for the claimant, was not the authorised representative under Section 2 of the Labour Relations Act and lacked locus standi. Mr. Mwaura conceded he was an ordinary person, not a union member or advocate, and could not produce the court circular he claimed sanctioned his appearance. The court held that only the general secretary or a person appointed in writing by an authorised representative may represent a trade union in court, following Josphinus Musundi v Seth Panyako and other authorities. Since the Memorandum of Claim was signed by Cecilia Mwangi, the Secretary General, the court found Mr. Mwaura's appearance a false representation and an abuse of the court's process. The application dated 28th September 2016 and the claim were dismissed, with costs to the respondent.

Key legal issues

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01

Locus standi of a non-authorised person appearing for a trade union

Holding

Mr. Mwaura, being neither the general secretary, a union official nor a person appointed in writing by an authorised representative, lacked standing to move the court for the claimant union.

Reasoning

Section 2 of the Labour Relations Act defines 'authorised representative' as the general secretary of a trade union or a person appointed in writing to perform those functions. Mr. Mwaura confirmed he was an ordinary person, not a member of the union, and could not produce the alleged court circular sanctioning his appearance. His appearance without authority was a false representation that could not be sanctioned by the court.

p. 3
02

Consequences of moving the court through an unauthorised representative

Holding

An application and claim moved improperly by a person without authority deserve no orders or directions and are dismissed.

Reasoning

The court held that proceedings are not a matter of personal whims; obtaining interim orders under a guise of authority was an error and an abuse of a superior court of record. Where the Secretary General (Cecilia Mwangi, who signed the Memorandum of Claim) exists, she should appear or issue a letter of authority; allowing a third party to play that role puts union affairs in jeopardy and exposes the union to liability.

p. 3

Legal principles established

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  • Only an authorised representative as defined in Section 2 of the Labour Relations Act, or a person appointed in writing by such authorised representative, may represent a trade union in court proceedings.
  • The duty to represent a claimant union is vested in the office of the Secretary General as the right-holder.

Court orders

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  1. 1.The application dated 28th September 2016 is dismissed
  2. 2.The Claim therein is dismissed
  3. 3.Costs to the respondent

Authorities

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Legislation

  • Labour Relations ActSection 2 (definition of 'authorised representative')
  • Labour Relations ActSection 80

Cases cited (3)

  • Josphinus Musundi and Others versus Seth Panyako
    Cause No. 866 of 2014
  • Julius Macharia Maina & another v Kenya Building, Construction, timber & Furniture Industries Employees Union & 3 others
    [2016] eKLR
  • Kenya Union of Employees of Voluntary and Charitable Organizations [KUEVACO] v Board of Governors & Maina Wanjigi Secondary School
    [2005] eKLR
Jurisdiction invoked
Employment and Labour Relations Court first-instance jurisdiction over employment and labour relations disputes (Labour Relations Act framework)

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 Hair and Beauty Workers v Solpia Kenya Limited [2016] KEELRC 23 (KLR)", Case Analysis (2016). Cause (ELRC) – application dated 28th September 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/23/eng@2016-11-03

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