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ELRCOtherNot stated in the excerpt (ELRC Cause, Mombasa)· [2018] KEELRC 1264 (KLR)

Kenya Shoe and Leather Workers Union v Modern Soap Factory [2018] eKLT [2018] KEELRC 1264 (KLR)

Employment and Labour Relations Court

31 July 2018

LNLinnet Ndolo

653 words in judgment

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The bottom line

A Kenyan trade union can sue on behalf of its members in the Employment and Labour Relations Court even without a recognition agreement with the employer.

What this practically means

Executive summary

This ruling of the Employment and Labour Relations Court at Mombasa, delivered by Linnet Ndolo J on 31 July 2018, determines a preliminary objection raised by the Respondent challenging the Claimant union's locus standi. The Respondent argued that the Claimant and the Grievants were strangers to the dispute because their union membership was disputed, and that the Memorandum of Claim offended Section 54 of the Labour Relations Act, there being no recognition agreement between the parties. The Claimant maintained that the Grievants were its members and that it had standing. The court held that Section 54(1) of the Labour Relations Act creates no necessary nexus between recognition and representation: recognition is for purposes of collective bargaining, whereas the right of representation in industrial litigation is conferred by membership, itself protected under Article 41 of the Constitution. Declining to follow Communication Workers Union v Safaricom Limited, relied on by the Respondent, the court aligned itself with Transport and Allied Workers Union v DHL Global Forwarding and Kenya Shoe & Leather Workers Union v Falcon Tanners, which confirm that a union may sue in its own name on behalf of aggrieved members without a recognition agreement. The court observed that the contrary view would lock out members of minority unions and impair fair competition among unions. The preliminary objection was overruled with costs in the cause, allowing the main claim to proceed.

Key legal issues

Whether a trade union requires a recognition agreement to sue on behalf of its members

Holding

No. Recognition is confined to collective bargaining under Section 54(1) of the Labour Relations Act; representation of members in industrial litigation is a distinct right conferred by membership, which is itself a constitutional right under Article 41.

Reasoning

The court distinguished between recognition, which enables collective bargaining, and representation, which is a separate statutory and constitutional right. Requiring recognition before representation would disenfranchise members of minority unions and distort competition among unions. The court aligned itself with prior ELRC decisions holding that unions may sue in their own name on behalf of aggrieved members without recognition.

p. 2

Legal principles established

Recognition of a trade union under Section 54(1) of the Labour Relations Act is not a prerequisite to the union's right to represent its members in court; the right to representation flows from membership protected under Article 41 of the Constitution.

Court orders

1.The preliminary objection by the Respondent is overruled with costs in the cause

Authorities

Legislation

Labour Relations ActSection 54(1)
Constitution of Kenya, 2010Article 41
Industrial Court (Procedure) RulesNot specified

Cases cited (3)

Communication Workers Union v Safaricom Limited
[2014] eKLR
Transport and Allied Workers Union v DHL Global Forwarding (K) Limited
Cause No 745 of 2010
Kenya Shoe & Leather Workers Union v Falcon Tanners Ltd
Cause No 826 of 2012

Jurisdiction invoked: Jurisdiction of the Employment and Labour Relations Court under the Labour Relations Act and the Industrial Court (Procedure) Rules to entertain claims brought by trade unions on behalf of their members

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kenya Shoe and Leather Workers Union v Modern Soap Factory [2018] eKLT [2018] KEELRC 1264 (KLR)", Case Analysis (2018). Not stated in the excerpt (ELRC Cause, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1264/eng@2018-07-31

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