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ELRCPartially AllowedIndustrial Cause (application for review of ruling of 14th June 2013)· [2017] KEELRC 1944 (KLR)

Transport Workers Union v Euro Petroleum Products Limited & another [2017] KEELRC 1944 (KLR)

Industrial Court (Employment and Labour Relations Court)
27 January 2017
971 words in judgment
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The bottom line

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Kenya's Employment Court allowed a union's late review only in part: individual unfair dismissal claims survived, but recognition and dues claims stayed dead.

What this practically means

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Executive summary

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The claimant union applied under Rule 32 of the repealed Industrial Court (Procedure) Rules 2010 for review of a ruling by Hon. Justice Nzioki wa Makau delivered on 14th June 2013, which upheld three preliminary objections - lack of jurisdiction, suit premised on repealed law, and lack of union locus standi - resulting in dismissal of the entire suit concerning non-remittance of union dues, non-recognition of the union, and unfair termination of seven employees. The respondent opposed, filing a preliminary objection that the application, filed over two years after the ruling, was time barred, that the court was functus officio, and that the application offended res judicata, and submitted the applicant should have appealed under Section 27(4) of the Rules. The court (Mathews Nderi Nduma, Principal Judge) held that review applications must be brought expeditiously and that a two-year delay would ordinarily be an abuse of process. However, it noted that the Judge had not dismissed the individual unfair dismissal claims - only the labour claims for recognition and union dues, which failed for want of prior conciliation - and the grievants had the right to pursue claims in their private capacity. The court found the ruling's holding on union locus standi was in breach of the law, since union membership grants the union standing to represent a member, and this was a permissible ground for review under Rule 32(1)(c). The application was allowed only to the extent that the individual employees' unfair dismissal claims remain alive and may be heard on the merits.

Key legal issues

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01

Whether the two-year delay disqualifies the review application

Holding

Delay ordinarily disqualifies the application, but the court excuses it as against the individual grievants' unfair dismissal claims

Reasoning

The court held that review applications must be brought expeditiously; two years' delay would be an abuse of process. However, since the grievants were innocent parties who had left the matter to the union, and their individual claims were never dismissed, the delay was not visited on them. The review was allowed only in that limited respect.

p. 2
02

Whether the union had locus standi to represent the grievants

Holding

The finding that unions may only represent employees where there is recognition was in breach of the law; union membership confers locus standi

Reasoning

The court found the Judge's ruling on locus standi was erroneous - membership of a worker or ex-worker grants the union standing to represent the member. This constituted an error sufficient to justify review under Rule 32(1)(c) of the repealed Rules, and was a permissible ground for review.

p. 3
03

Whether the unfair dismissal claims were extinguished by the ruling

Holding

The individual claims for unfair dismissal were never dismissed and remain alive; only the labour claims were dismissed

Reasoning

The Judge's ruling had only dismissed the labour claims for recognition and union dues for failure to pursue conciliation first. The dismissed grievants retained the right to pursue unfair dismissal claims in their private capacity, needing only to seek amendment to bring claims in their own names. No review was required for that, but the court confirmed the claims remain alive.

p. 3

Legal principles established

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  • An application for review under Rule 32 must be brought expeditiously and without inordinate delay; an inordinate delay of over two years is an abuse of court process.
  • Membership of a worker or ex-worker in a union grants the union locus standi to represent the member before the court.
  • Litigation must come to an end; delay will not be visited on innocent grievants who left the matter in the union's hands.

Court orders

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  1. 1.Application for review allowed only to the extent that the claims by the individual employees for unfair dismissal are still alive and may be heard on the merits
  2. 2.The labour claims for recognition and remission of union dues abandoned/dismissed remain dismissed

Authorities

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Legislation

  • Industrial Court (Procedure) Rules 2010 (repealed)Rule 32, Rule 32(1)(c), Section 27(4)
  • Labour Institutions Act, 2007 (repealed provisions)null
  • Employment Actnull

Cases cited (1)

  • Industrial Cause No. 128 of 2012 (decision of Justice Rika)
Jurisdiction invoked
Rule 32 of the Industrial Court (Procedure) Rules 2010 (repealed) - review of a ruling of the court

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, "Transport Workers Union v Euro Petroleum Products Limited & another [2017] KEELRC 1944 (KLR)", Case Analysis (2017). Industrial Cause (application for review of ruling of 14th June 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1944/eng@2017-01-27

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