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ELRCDismissedNot stated in the judgment· [2018] KEELRC 1308 (KLR)

Building, Construction, Timber, Furniture and Allied Industries Employees Union v Sasah General Merchants Kenya [2018] KEELRC 1308 (KLR)

Employment and Labour Relations Court
Invalid Date
MOMaureen OnyangoMNMathews Nderi Nduma
1,066 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court dismissed a union's claim for 62 workers because it could not prove the men were ever employed or terminated by the employer.

What this practically means

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Executive summary

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The claimant union sued on behalf of 62 grievants allegedly employed on construction of students' hostels at Bondo University College between January 2010 and December 2011, alleging their contracts were terminated because they joined the union. It sought terminal dues of Kshs.3,445,946 under the heads of underpayments, notice, leave and prorata leave, a declaration that the termination was unlawful, certificates of service and costs. The respondent denied the grievants were its employees, contending only some were casual piece workers paid daily wages; it raised locus standi, jurisdiction, and limitation under Section 90 of the Employment Act. The court framed five issues and took the limitation point first, holding that terminations in December 2011 meant the March 2014 filing was within three years, so the claim was not time barred. On membership, the check-off forms were undated and unproved as having been served on the respondent, so while membership existed, the date of joining and the respondent's awareness were not proved. The miscellaneous forms filed did not connect the grievants to the respondent, so neither employment nor termination was proved. Consequently no evidence of underpayment existed and all prayers, pegged on proof of appointment, wages and termination, failed. The claim was dismissed with no order for costs. The judgment was signed at Nairobi on 21 June 2018 by Onyango J and delivered at Kisumu on 30 July 2018 by Nduma J.

Key legal issues

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01

Whether the claim was time barred under Section 90 of the Employment Act

Holding

The claim was not statute barred; terminations were in December 2011 and the claim was filed within three years

Reasoning

The court treated limitation as a preliminary point capable of disposing of the claim. Since termination was alleged to be in December 2011 and the claim was filed in March 2014, less than three years had elapsed, so the limitation period had not lapsed and jurisdiction existed.

p. 2
02

Whether the grievants were members of the claimant union and whether the claimant had locus standi

Holding

There was proof of membership but no proof of the date of joining or of the respondent's awareness; check-off forms were undated and there was no proof they were served on the respondent

Reasoning

The check-off forms attached bore names and signatures but no dates of signing, and the General Secretary's signature was also undated. There was no evidence the forms were sent to the respondent or that the respondent knew of the membership, undermining the claim of termination for union membership.

p. 2
03

Whether the grievants were unfairly terminated

Holding

No proof of either employment or termination; the documents filed did not connect the grievants to the respondent

Reasoning

The claimant produced only check-off forms and miscellaneous forms titled 'Company's Name' with handwritten records that did not link the names to the respondent. Without documentary proof of engagement, wages or termination, the allegation of unfair termination could not stand.

p. 2
04

Whether the claimant was entitled to the prayers sought

Holding

Claim dismissed; all prayers were pegged on proof of appointment, wages and termination, none of which was proved

Reasoning

Having found no evidence of employment, termination or underpayment, the claims for notice, leave and arrears of underpayments had no evidential foundation. The entire claim was therefore dismissed with no order for costs.

p. 2

Legal principles established

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  • A claim filed within three years of the cause of action is not statute barred under Section 90 of the Employment Act
  • Check-off forms without dates do not prove when members joined a union or that the employer was aware of the membership
  • A claimant must prove the employment relationship and the termination for prayers pegged on wages, notice and leave to stand

Court orders

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  1. 1.The claim is dismissed
  2. 2.There shall be no order for costs

Authorities

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Legislation

  • Employment ActSection 90
  • Employment ActSections 41 and 44
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act; contested under Section 90 limitation but upheld

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, "Building, Construction, Timber, Furniture and Allied Industries Employees Union v Sasah General Merchants Kenya [2018] KEELRC 1308 (KLR)", Case Analysis (). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1308/eng@2018-07-30

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