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ELRCPartially AllowedPreliminary Objection in the claim (Cause at Eldoret; related Causes Nakuru No. 396 of 2014 and Nakuru ELRC No. 448 of 2014)· [2018] KEELRC 2587 (KLR)

Elias Kiplagat Chemweno & 77 others v Zena Roses Company Limited [2018] KEELRC 2587 (KLR)

Employment and Labour Relations Court of Kenya
25 June 2018
MMM. Mbaru
1,793 words in judgment
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The bottom line

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Kenya's Employment Court ruled that dismissed workers remain union members, and their claims must be consolidated with the union's existing case to avoid duplicate lawsuits.

What this practically means

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Executive summary

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This is a ruling on a preliminary objection raised by the respondent, Zena Roses Limited, in an unfair dismissal claim brought by employees in the Employment and Labour Relations Court at Eldoret. The respondent objected that two suits between the same parties were already pending at Nakuru: Cause No. 396 of 2014 (filed by Zena Roses against the union concerning a strike notice) and Cause No. 448 of 2014 (filed by the union on behalf of the claimants concerning the transfer of shop stewards). The claimants argued that the three suits sought different orders, that they had ceased union membership upon termination, and that they were entitled to sue in their own right. The court held that unionisation does not cease with termination of employment; section 39 of the Labour Relations Act, 2007 empowers a union to litigate to protect members' employment rights, including on termination. While sections 20 and 22 of the Employment and Labour Relations Court Act, 2011 allow an employee to sue in their own right, that right should not be used to conflate issues or multiply suits. Applying Seth Panyako v KUDHEIHA and the South African decision in Food and Allied Workers' Union v Ngcobo, the court found the objections with merit and ordered the claim consolidated under Nakuru Cause No. 448 of 2014, with the question of the best registry (Nakuru or Eldoret) to be addressed upon consolidation. The judgment was delivered by M. Mbaru J on 25 June 2018.

Key legal issues

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01

When does union membership cease?

Holding

Membership does not cease upon termination of employment; the union is empowered under section 39 of the Labour Relations Act, 2007 to litigate on behalf of its members concerning their employment, including termination.

Reasoning

Employees unionise to build a collective capable of negotiating terms and conditions of employment, including termination. The union's funds under section 39 of the Labour Relations Act may be applied to the prosecution or defence of legal proceedings protecting members' rights. Termination is therefore a matter within the union's mandate, and the claimants' assertion that membership ended at termination is not sustained.

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02

Whether the pendency of Cause No. 396 of 2014 and Cause No. 448 of 2014 warranted consolidation

Holding

Yes. To avoid conflicting decisions and multiplication of suits between the same parties over the same cause of action, consolidation of all files is imperative.

Reasoning

The active suits at Nakuru, one by the employer and one by the union, address the strike and the dismissals that gave rise to this claim. Allowing the present claim to proceed separately would risk conflicting orders and multiple awards. Consolidation enables the court to be seized of all matters between the parties and arrive at a determination with full context of the facts.

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Legal principles established

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  • Unionisation and trade union membership does not cease with termination of employment
  • Where a trade union acting for an employee has commenced suit, there should be no multiplication of suits
  • An employee may sue in their own right under sections 20 and 22 of the ELRC Act, 2011, but this right should not be applied to conflate issues

Court orders

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  1. 1.The preliminary objection by the respondent is found with merit
  2. 2.The claim herein shall be consolidated under Cause No. 448 of 2014 Kenya Plantations and Agricultural Workers Union versus Zena Roses, Nakuru ELRC Registry
  3. 3.Upon consolidation, the appropriate registry, Nakuru or Eldoret, to be addressed given the number of claimants

Authorities

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Legislation

  • Labour Relations Act, 2007Section 39 (c), (d) and (e)
  • Employment and Labour Relations Court Act, 2011Sections 20 and 22

Cases cited (2)

  • Seth Panyako versus Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers
    [2013] eKLR
  • Food and Allied Workers' Union versus Ngcobo
    [353/12] 2013 [ZASCA] 45 [28th March 2013]
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011, sections 20 and 22

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Elias Kiplagat Chemweno & 77 others v Zena Roses Company Limited [2018] KEELRC 2587 (KLR)", Case Analysis (2018). Preliminary Objection in the claim (Cause at Eldoret; related Causes Nakuru No. 396 of 2014 and Nakuru ELRC No. 448 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2587/eng@2018-06-25

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