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ELRCDismissedELRCC (suit consolidated with ELRCC No. 1041 of 2013, 1683 of 2014, 1690 of 2014 and 1579 of 2014)· [2018] KEELRC 142 (KLR)

Kenya Union of Hair and Beauty Salon Workers v Black Beauty Products Ltd; Kenya Scientific Research International& Technical Institutions Workers Union (Interested Party) [2018] KEELRC 142 (KLR)

Employment and Labour Relations Court
7 December 2018
OMOnesmus N. Makau
2,639 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan trade union lost its recognition case for missing court deadlines and failing to prove it represented most of the employer's staff.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Makau J) determined an application by the claimant trade union, filed on 30th August 2018, seeking leave to change advocates, review/vary of the court's pronouncement of 14th June 2018, and reinstatement of its consolidated suit against the respondent employer and an interested party rival union. The suit had been consolidated with four others on 21st February 2018 to be disposed of by written submissions, but the claimant repeatedly failed to file submissions. On 2nd May 2018 she was granted a final 2-day leave on condition that default would result in automatic dismissal; she defaulted again, and on 14th June 2018 the court observed that the suit stood dismissed with each party bearing its own costs. The court granted leave for the change of counsel since the outgoing firm consented in writing. It declined review, holding that the 14th June 2018 pronouncement was merely an observation recording that the suit had been automatically dismissed by effluxion of the conditional leave, not a substantive dismissal order. Reinstatement was also refused: the claimant had been indolent, defaulting for about 74 days, and the suit disclosed no reasonable cause of action because it never pleaded recruitment of a simple majority of the respondent's unionisable staff as required by Section 54 of the Labour Relations Act, nor the total number of unionisable staff. The court noted she was free to conduct fresh recruitment and file a fresh suit. The application was dismissed with costs.

Key legal issues

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01

Whether the court should review or vary its pronouncement of 14.6.2018 that the suit stood dismissed

Holding

Review declined because the 14.6.2018 pronouncement was a mere observation of the true position - the suit had been automatically dismissed by effluxion of the 2-day conditional leave - not a substantive dismissal order capable of review.

Reasoning

The court examined its own 14.6.2018 observations, noting that the claimant had defaulted twice despite clear warnings that failure to file submissions within the extended 2 days would result in automatic dismissal. Since the suit stood dismissed by effluxion of time upon the claimant's own default, there was no decision to review or vary; the observation merely stated the true legal position.

p. 4
02

Whether the dismissed suit should be reinstated for hearing on the merits

Holding

Reinstatement refused: the claimant was indolent (about 74 days' default) and the suit did not disclose a reasonable cause of action for lack of pleading a simple majority of recruited unionisable staff.

Reasoning

Conditional leave was intended to deter continued delay; the claimant defaulted repeatedly. Further, the statement of claim never pleaded recruitment of a simple majority nor the total number of unionisable staff, as required by Section 54 of the Labour Relations Act. The claimant would suffer no prejudice as she could conduct fresh recruitment, seek fresh recognition, and file a fresh suit if recognition were unlawfully withheld.

p. 4
03

Whether leave should be granted for the claimant to change counsel after dismissal

Holding

Leave granted as a matter of course since the outgoing counsel, Nyabena & Company Advocates, consented in writing to the incoming firm taking over the brief.

Reasoning

Order 9 rule 9 permits change of counsel after judgment upon leave, given as a matter of course where outgoing counsel consents in writing. Nyabena & Company Advocates signed a letter dated 24.8.2018 consenting to Macharia Burugu & Company Advocates taking over the claimant's brief, so leave was granted as prayed.

p. 3

Legal principles established

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  • A party may change counsel after judgment upon obtaining leave, which is given as a matter of course where the outgoing counsel consents in writing (Order 9 rule 9).
  • Under Section 54 of the Labour Relations Act, recognition is accorded to a trade union which has recruited a simple majority of the employer's unionisable staff, and a claimant must plead this.
  • The court's power to review its own decisions is donated by Rule 33(1) of the ELRC Procedure Rules and is discretionary and unfettered.

Court orders

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  1. 1.Leave granted to Macharia Burugu & Company Advocates to come on record for the Claimant in place of Nyabena Alfred & Company Advocates.
  2. 2.Application for review/vary of the 14.6.2018 orders declined.
  3. 3.Application for reinstatement of the suit declined.
  4. 4.Application dismissed with costs to the respondents.

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 rule 9
  • Employment and Labour Relations Court Procedure RulesRule 33(1)
  • Labour Relations ActSection 54

Cases cited (2)

  • Edney Adaka Ismail vs. Equity Bank Limited
    [2014] eKLR
  • Shanzu Investment Ltd vs. the Commissioner of Lands
    Civil Appeal No. 100 of 1993 [1993] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Procedure Rules, Rule 33(1) (review jurisdiction); Order 9 rule 9 Civil Procedure Rules (change of counsel)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Hair and Beauty Salon Workers v Black Beauty Products Ltd; Kenya Scientific Research International& Technical Institutions Workers Union (Interested Party) [2018] KEELRC 142 (KLR)", Case Analysis (2018). ELRCC (suit consolidated with ELRCC No. 1041 of 2013, 1683 of 2014, 1690 of 2014 and 1579 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/142/eng@2018-12-07

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