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ELRCPartially AllowedCause (Nyeri ELRC) – Employment cause reported under Section 65(1) of the Labour Relations Act· [2019] KEELRC 224 (KLR)

Kudheiha Workers v Catholic Bookshop Diocese of Embu [2019] KEELRC 224 (KLR)

Employment and Labour Relations Court
5 December 2019
NMNzioki wa Makau
2,801 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded three Catholic Bookshop workers their promised notice pay and gratuity, but threw out union claims because the union couldn't produce its CBA.

What this practically means

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Executive summary

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The Claimant Union sued the Respondent, an entity within the Catholic Diocese of Embu, on behalf of three Grievants – Cicily Wanjiru Mbogo (bookshop sales assistant), Francis Ithuki Njuguna (machine operator) and Samson Musyoka Nziu (accounts clerk) – alleging unfair termination on 29th February 2016 after they demanded salary increments, and claiming underpayment of salary and house allowance arrears under a CBA said to bind churches and institutions, plus compensation for loss of employment. The Respondent denied any recognition agreement or CBA with the Union, contended the Grievants were on fixed term contracts that lapsed on 27th/29th February 2016 and that they lacked union membership, and raised a limitation objection under Section 90 of the Employment Act. The Grievants relied on undated and unsigned membership cards and admitted no check-off deductions. The Respondent's manager confirmed no recognition agreement existed and that the Grievants applied for renewal but the Respondent declined. The court held that the Claimant Union was not the proper party to sue because the CBA it relied on, including a 2016 one, was not exhibited and no registration certificate was produced; it therefore substituted the three Grievants as Claimants. Finding the contracts came to an end on 29th February 2016 but that the promised notice pay and gratuity were never shown to have been paid, the court awarded each Claimant one month salary in lieu of notice and gratuity, to be computed by the Respondent. Claims for CBA-based arrears and unfair termination compensation failed. There was no order as to costs.

Key legal issues

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01

Locus standi of the Claimant Union to sue for the Grievants

Holding

The Claimant Union lacked standing as it failed to exhibit the CBA it relied upon; the Grievants were substituted as Claimants in their own right.

Reasoning

The court accepted that the Respondent was covered by the CBA between the Union and the churches, but the Claimant adverted to a 2016 CBA that was never exhibited and no registration certificate was produced for the earlier one. Without evidence of the CBA, the Union was not the proper party to sue for the Grievants, who were therefore substituted as Claimants.

p. 3
02

Whether the Grievants were unfairly terminated or their fixed term contracts lapsed

Holding

The contracts came to an end on 29th February 2016; the claim of unfair dismissal failed, but unpaid promised dues were recoverable.

Reasoning

The Respondent exhibited termination letters dated 29th February 2016 indicating the contracts had come to an end and promising gratuity, other dues and one month salary in lieu of notice. No evidence showed the promised payments were made. The court therefore awarded the promised notice pay and gratuity for each Grievant but not compensation for unfair termination or CBA-based underpayment arrears.

p. 3

Legal principles established

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  • A trade union claiming on behalf of grievants must prove membership and the CBA it relies on; an unexhibited and unregistered CBA cannot be enforced.
  • Where an employer promises terminal dues (notice pay and gratuity) on cessation of fixed term contracts and no evidence of payment is shown, the employees are entitled to recover those sums.

Court orders

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  1. 1.The Court substitutes the 3 Grievants as the 1st, 2nd and 3rd Claimant respectively
  2. 2.The 1st Claimant Cicily Wanjiru Mbogo is entitled to recover one month salary in lieu of notice and gratuity, as computed by the Respondent
  3. 3.The 2nd Claimant Francis Ithuki Njuguna is entitled to recover one month salary in lieu of notice and gratuity, as computed by the Respondent
  4. 4.The 3rd Claimant Samson Musyoka Nziu is entitled to recover one month salary in lieu of notice and gratuity, as computed by the Respondent
  5. 5.No order as to costs

Authorities

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Legislation

  • Labour Relations ActSection 62(1)
  • Labour Relations ActSection 65(1)
  • Labour Relations ActSection 48(1)
  • Labour Relations ActSection 48(3)
  • Labour Relations ActSection 59(5)
  • Employment ActSection 40(1)(d)
  • Employment ActSection 8
  • Employment ActSections 35, 36 and 41
  • Employment ActSection 90

Cases cited (2)

  • Communication Workers' Union v Safaricom Limited
    [2014] eKLR
  • Samuel Otiende Lukoko v Shiners Girls High School
    [2015] eKLR
Jurisdiction invoked
Reference by the Minister of Labour of an unresolved trade dispute to the Employment and Labour Relations Court under the Labour Relations Act

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, "Kudheiha Workers v Catholic Bookshop Diocese of Embu [2019] KEELRC 224 (KLR)", Case Analysis (2019). Cause (Nyeri ELRC) – Employment cause reported under Section 65(1) of the Labour Relations Act. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/224/eng@2019-12-05

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