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ELRCDismissedCause No 1518 of 2015· [2016] KEELRC 1336 (KLR)

Kenya Chemical & Allied Workers Union v Kenplastics Limited [2016] KEELRC 1336 (KLR)

Employment and Labour Relations Court
22 April 2016
LNLINNET NDOLO
695 words in judgment
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The bottom line

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Kenya's Employment Court confirmed trade unions can sue for their members without a recognition agreement from the employer.

What this practically means

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Executive summary

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The Respondent filed a Notice of Motion dated 1st October 2015 seeking dismissal of the Claimant trade union's claim on two grounds: first, that the issue of deduction and remittance of union dues was already pending in Nairobi ELRC Cause No 1251 of 2014, making the present suit an abuse of process; and second, that the Claimant, lacking a Recognition Agreement with the Respondent, had no locus standi to sue, particularly in respect of the alleged unlawful lock-out of workers. The court compared the Memoranda of Claim in both causes and found them substantially different: the earlier cause concerned refusal to sign a Recognition Agreement and failure to deduct union dues under Sections 54(1) and 48(1) of the Labour Relations Act, while the present claim concerned lock-out of the Respondent's workers. On locus standi, the judge relied on the settled jurisprudence of the Court, citing Rika J in Kenya Chemical and Alliled Workers Union v National Cement, Onyango J in Botanical Extracts, and her own prior decision in Transport and Alliled Workers Union v DHL, to the effect that a recognition agreement is not a prerequisite to union representation; membership itself confers the right to representation under Article 41 of the Constitution. Finding no reason to depart from that view, the court held the claim was properly before it, dismissed the application and awarded costs to the Claimant.

Key legal issues

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01

Whether the current claim is duplicative of Cause No 1251 of 2014 (res judicata/abuse of process)

Holding

The two claims are substantially different; the earlier cause concerns refusal to sign a Recognition Agreement and failure to deduct union dues, while the present claim concerns lock-out of workers

Reasoning

The court compared the Memoranda of Claim in both causes. The issues in Cause No 1251 of 2014 arise under Sections 54(1) and 48(1) of the Labour Relations Act, whereas the present claim's substance is the alleged lock-out of the Respondent's workers who are the Claimant's members. Since the claims differ, neither is improperly before the Court and the abuse-of-process argument fails.

p. 2
02

Whether the Claimant trade union has locus standi without a Recognition Agreement

Holding

A trade union need not enjoy recognition status to have locus standi to represent its members; membership confers the right of representation under Article 41

Reasoning

The court relied on prior decisions of the Employment and Labour Relations Court, including Rika J in Kenya Chemical and Alliled Workers Union v National Cement, Onyango J in Botanical Extracts, and the judge's own earlier holding in the DHL case. Finding no reason to depart from that settled line, the court held the Claimant had the necessary locus standi.

p. 2

Legal principles established

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  • A trade union does not require a recognition agreement to have locus standi to represent its members in disputes filed in court; the right to representation flows from membership under Article 41 of the Constitution

Court orders

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  1. 1.The Respondent's Notice of Motion dated 1st October 2015 seeking dismissal of the Claimant's claim is dismissed with costs to the Claimant

Authorities

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Legislation

  • Labour Relations ActSection 54(1)
  • Labour Relations ActSection 48(1)
  • Constitution of Kenya, 2010Article 41

Cases cited (3)

  • Kenya Chemical and Alliled Workers Union v National Cement Company Limited
    Cause No 1113 of 2012
  • Kenya Chemical & Alliled Workers Union v Botanical Extracts (EPZ) Limited
    Cause No 2118 of 2012
  • Transport and Alliled Workers Union v DHL Global Forwarding (K) Limited
    Cause No 745 of 2010
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes

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 Chemical & Allied Workers Union v Kenplastics Limited [2016] KEELRC 1336 (KLR)", Case Analysis (2016). Cause No 1518 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1336/eng@2016-04-22

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