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ELRCDismissedCause No. 1156 of 2011· [2016] KEELRC 1246 (KLR)

Kudheiha Workers v Technical University of Kenya [2016] KEELRC 1246 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
17 March 2016
MMM. Mbaru
10,682 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~43 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a union's unfair termination claim because the union had no recognition agreement, confirming unions cannot sue employers without one.

What this practically means

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Executive summary

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The claimant union, KUDHEIHA Workers, brought a claim against the Technical University of Kenya (formerly Kenya Polytechnic University College) contesting the termination of its member, grievant Sarah Anyangu Indeche-Ochieng, a clerical officer dismissed on 9 March 2010 following a disciplinary hearing on charges of absenteeism and causing a commotion at the Principal's office on 29 October 2009. The claimant sought reinstatement or, alternatively, extensive benefits computed over 240 months under a CBA it had with the University of Nairobi, asserting the termination lacked valid reasons and due process and was linked to sexual harassment of the grievant. The respondent defended the termination as lawful and procedural, denied the harassment allegations, and noted the harassment and assault claims were the subject of CMCC 1318 of 2010 which had been dismissed. The court framed three issues: whether a CBA was in force, whether there was unfair termination, and what remedies were available. It found the CBA relied upon was with the University of Nairobi, not the respondent, and that at filing the claimant union had no recognition agreement, rendering it the wrong party to sue - a defect that could not be cured by article 159 of the Constitution. On the merits, the court found the disciplinary panel properly constituted, the hearing fair with union representation, and the reasons valid. The claim was dismissed with each party bearing its own costs.

Key legal issues

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01

Standing of the claimant union to file the suit

Holding

The claim fails in its entirety because at the time of filing the claimant union had neither recognition nor a CBA with the respondent, making it the wrong party to sue

Reasoning

Recognition of a trade union is a legal process under section 54 of the Labour Relations Act. On 12 July 2011 when the claim was filed, the claimant had no recognition with the respondent. The court held this legal defect could not be cured by article 159 of the Constitution or section 20 of the ELRC Act, and that the respondent's participation in conciliation and failure to pursue the standing objection did not validate the claim.

p. 10
02

Whether the termination of the grievant was unfair

Holding

The termination was not unfair: valid reasons existed (absenteeism and causing a commotion) and the grievant was afforded a fair hearing with union representation

Reasoning

The grievant was suspended on stated grounds, invited to a disciplinary hearing, given a chance to state her case with a shop steward present, and the panel's finding that she was absent and caused a commotion could not be faulted. Her failure to explain her whereabouts and to controvert the allegations before the committee supported the decision. The court found the panel properly constituted despite the grievant's objections to its members.

p. 13
03

Whether the sexual harassment and assault allegations could be determined in this suit

Holding

The sexual harassment and assault claims were not the issue in dispute and were sub judice in or already disposed of by CMCC 1318 of 2010, so the court declined to determine them

Reasoning

The issue in dispute registered was wrongful termination only. Both parties admitted the assault and sexual harassment matters were the subject of CMCC 1318 of 2010, which had been dismissed. The court held those details were not for it to review as this was a labour dispute based on the evidence before it, and the claimant and grievant failed to prove the allegations on a balance of probabilities within the issue in dispute.

p. 13

Legal principles established

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  • A trade union without a recognition agreement lacks the locus standi to engage an employer for and on behalf of employees
  • Filing a suit by the wrong party cannot be cured or validated under article 159 of the Constitution or section 20 of the Employment and Labour Relations Court Act
  • An employee facing disciplinary charges does not have the right to dictate the composition of the disciplinary panel

Court orders

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  1. 1.The claim is hereby dismissed
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Articles 27, 28, 29, 31 (pled), Article 41
  • Employment ActSections 5, 10, 19 (pled), 41(1), 44(4)(a)(d)(e), 46(g)
  • Labour Relations ActSection 54
  • Employment and Labour Relations Court ActSections 20, 22
  • Public Officer Ethics ActSections 10 and 19
  • Legal Notice No. 159 of 2007Sections 3(3) and 3(4)
  • Education Act
  • Technical University of Kenya Act (Respondent university Act)Section 16

Cases cited (3)

  • Beatrice Achieng Osir v Board of Trustees Teleposta Pension Scheme
    Cause No. 665 of 2011
  • Amalgamated Union of Kenya Metal Workers v Dathley Industries Ltd
    Cause No. 2098 of 2011
  • KUDHEIHA v Aga Khan University Hospital
    Cause No. 815 of 2015
Jurisdiction invoked
Employment and Labour Relations Court Act, sections 20 and 22; Employment Act

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, "Kudheiha Workers v Technical University of Kenya [2016] KEELRC 1246 (KLR)", Case Analysis (2016). Cause No. 1156 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1246/eng@2016-03-17

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