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ELRCPartially AllowedCause No. as per Memorandum of Claim filed 16.3.2015 (Cause not stated in judgment)· [2017] KEELRC 1679 (KLR)

Kenya National Union of Nurses v Samuel Kambi Kazungu (Cabinet Secretary, Ministry of Labour, Social Security and Services & 4 others [2017] KEELRC 1679 (KLR)

Employment and Labour Relations Court
27 February 2017
HWHellen Wasilwa
3,096 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck down a Gazette Notice forcing civil servants to pay union agency fees, ruling workers cannot be forced to fund a union they did not join.

What this practically means

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Executive summary

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The Claimant Union, drawing membership from the nursing profession, challenged Kenya Gazette Supplement No. 19 of 20th February 2015, by which the 1st Respondent, Cabinet Secretary for Labour, gazetted agency fee deductions from all public servants in favour of the 3rd Respondent union. The Claimant argued its members never instructed or benefited from the 3rd Respondent's CBA, had their own recognition agreement, and that the gazette notice breached Section 49 of the Labour Relations Act and Article 41 freedom of association. The court framed two issues: whether the 1st Respondent was properly enjoined, and the validity of the Gazette Notice. On the first, the judge held the Cabinet Secretary acted in his official capacity and suing him personally offended Article 236; the case against him was dismissed with costs. On the second, the court read Section 49(1) and (2) as requiring a valid CBA, a written request, a list of affected employees prepared by the employer, the amount and the union account. None was proved; the only CBA was an 11-year-old one terminated by an SRC circular effective 30 June 2013. Relying on Rift Valley Railways Workers Union and Tailors & Textile Workers Union, and the US decision in Harris v Quinn, the court held that freedom of association includes freedom not to associate, so members of a rival union cannot be compelled to pay agency fees. The Gazette Notice was declared illegal, of no consequence, and inapplicable to Claimant members; Respondents to bear costs.

Key legal issues

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01

Whether the Cabinet Secretary was properly enjoined

Holding

He was wrongly enjoined; suit against him personally dismissed with costs.

Reasoning

The Gazette Notice was issued in his official capacity as Cabinet Secretary for Labour. Suing him by name in his private capacity victimises a public officer for performing official functions, contrary to Article 236 of the Constitution which protects public officers from victimisation or discrimination for lawful performance of their duties.

p. 5
02

Validity of Gazette Notice No. 19 of 20.2.2015

Holding

Invalid and illegal; declared of no consequence and not applicable to Claimant Union members.

Reasoning

Section 49(1) and (2) of the Labour Relations Act sets preconditions: a valid CBA, a written request signed by authorised representatives, a list of affected employees prepared by the employer, the amount and the union account. None of these were proved. The only CBA was an 11-year-old agreement terminated by an SRC circular of 30 June 2013. Members of a rival union with their own recognition agreement cannot be compelled to pay agency fees, per Article 41 freedom of association including freedom not to associate.

p. 7

Legal principles established

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  • Suing a Cabinet Secretary personally for acts done in official capacity contravenes Article 236 of the Constitution
  • Section 49 of the Labour Relations Act requires a valid CBA, a written request, a list of affected employees prepared by the employer, the amount and the union account before agency fee deductions may be gazetted
  • Freedom of association under Article 41 incorporates freedom not to associate; members of a rival union cannot be compelled to pay agency fees to another union

Court orders

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  1. 1.Case against the 1st Respondent dismissed with costs to him
  2. 2.Kenya Gazette Supplement No. 19 dated 20th February 2015 declared illegal and of no consequence and shall not affect members of the Claimant Union
  3. 3.Respondents to meet costs of the suit

Authorities

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Legislation

  • Labour Relations Act, 2007Section 49(1), 49(2), 4(1)
  • Employment Act, 2007Section 19(1)(f)
  • Constitution of Kenya, 2010Articles 41, 236, 35
  • Fair Administrative Action Act

Cases cited (7)

  • Amalgamated Union of Kenya Metal Workers vs. Unity Auto Garage (Nairobi) Limited
    (2014) eKLR
  • Patrick Wanyonyi Khaembe vs. Secretary TSC & Another
    (2014) eKLR
  • Githu Muigai & Another vs. LSK & Another
    (2015) eKLR
  • Kenya Hotels & Allied Workers Union vs. A.G and 6 others
    (2015) eKLR
  • Rift Valley Railways Workers Union vs. Rift Valley Railways (K) Limited and Another
    (2014) eKLR
  • Tailors & Textile Workers Union vs Ashton Apparels (EPZ) Limited
    (2015) eKLR
  • Harris vs Quinn
    134 S. Ct 2618 (2014)
Jurisdiction invoked
Labour Relations Act, 2007; Article 41 of the Constitution of Kenya 2010

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 National Union of Nurses v Samuel Kambi Kazungu (Cabinet Secretary, Ministry of Labour, Social Security and Services & 4 others [2017] KEELRC 1679 (KLR)", Case Analysis (2017). Cause No. as per Memorandum of Claim filed 16.3.2015 (Cause not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1679/eng@2017-02-27

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