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ELRCPartially AllowedCause No. 20 of 2018 (consolidated with Causes Nos. 21–32 and 49 of 2018)· [2019] KEELRC 408 (KLR)

Mercella Muringi Kariuki & 13 others v Kiru Farmers Co-operative Society Limited & another [2019] KEELRC 408 (KLR)

Employment and Labour Relations Court
17 October 2019
NMNzioki wa Makau
7,641 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenyan workers who join a conciliation process cannot abandon it halfway—the conciliator's award binds them unless they formally resign and notify the right parties.

What this practically means

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Executive summary

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Fourteen former employees of a coffee society (1st Respondent) sued in fourteen consolidated causes before the Employment and Labour Relations Court at Nyeri, claiming unfair termination on 7th September 2016 following an alleged unprotected strike. Against the 1st Respondent they sought compensation for unfair termination, salary in lieu of notice, service gratuity, house allowance, overtime, leave allowance, unpaid NSSF/NHIF dues, Sacco deductions refund, and a certificate of service; against the 2nd Respondent (their trade union) they sought general damages for breach of the duty of representation during conciliation. The 1st Respondent maintained the strike was illegal and unprotected, that the terminations were warranted, and that under a conciliator's report each Claimant was entitled only to specified terminal benefits payable in three installments. The union denied any breach, having reported the dispute promptly and participated in conciliation, and contended it should have been enjoined as an interested party. The court held that the Claimants, having initiated the industrial action and the dispute process, could not disown the conciliation without following the lawful withdrawal procedure; the conciliation was therefore binding on them. The court adopted the conciliator's report of 6th September 2017 as its own finding, awarding the tabulated sums totalling Kshs. 15,675,676.25 for annual leave, salary arrears, overtime and service gratuity, payable per the report's mode of payment. Claims for compensation for unfair termination, notice pay, and damages against the union were refused. Each party was ordered to bear its own costs, the court holding the dispute never required judicial interposition.

Key legal issues

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01

Binding effect of conciliation report on employees who withdraw from the union

Holding

The conciliation report was binding on the Claimants and was adopted as the finding of the court

Reasoning

The Claimants initiated the industrial action leading to their dismissal and then turned to the union and the conciliation process. Having set that process in motion, they could not short-circuit it by merely approaching the court. Proper withdrawal required resignation from the union, communication to the conciliator, and notice to the Minister with a copy to the employer. Failing that, the conciliator's report remained binding and the court adopted it as its own finding, entitling each Claimant to the tabulated terminal dues.

p. 7
02

Liability of the trade union for alleged failure of representation

Holding

No liability; the union acted expeditiously and within the law, and was wrongly sued as a respondent

Reasoning

The evidence showed the union reported the dispute to the Cabinet Secretary for Labour promptly after the dismissals, participated in conciliation meetings, accepted the conciliator's recommendation, and could not move to court before the conciliation report and certificate were issued. The Claimants' impatience and disavowal of the process did not establish any breach of duty. The union's proper role would have been as an interested party, not a respondent liable for damages.

p. 7
03

Lawfulness of termination for participation in an unprotected strike

Holding

The court did not grant the claimed compensation for unfair termination; the conciliator had excluded notice and compensation because the strike was unlawful

Reasoning

The 1st Respondent asserted and the conciliation process proceeded on the basis that the strike was unscheduled and unprotected, having been initiated by the Claimants themselves without the Secretary General of the union calling it. The conciliator isolated only annual leave, salary arrears, overtime and terminal benefits for award, leaving out notice and compensation on account of the unlawful strike. By adopting the conciliator's report, the court effectively endorsed that position rather than awarding the Claimants' heads of compensation and notice.

Legal principles established

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  • A conciliation process duly initiated under the Labour Relations Act binds the employees even if they later disown it, unless they properly resign from the union, notify the conciliator and the Minister, and abandon the process lawfully
  • A trade union representing employees in a dispute should ordinarily be enjoined as an interested party rather than sued as a respondent liable for terminal benefits

Court orders

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  1. 1.The Conciliator's report dated 6th September 2017 and signed by Mr. Edward C. Mwangudza is adopted as the finding of the court
  2. 2.Each Claimant is entitled to the sums tabulated by the conciliator totaling Kshs. 15,675,676.25 for the 20 members of the 2nd Respondent, covering annual leaves, salary arrears, overtime and service gratuity
  3. 3.The 1st Respondent is required to make payments to the Claimants as per the conciliation report including the proposed mode of payment
  4. 4.Each party to bear their own costs

Authorities

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Legislation

  • Employment ActSection 41
  • Employment ActSection 22
  • Employment ActSections 45(2)(a) and (b)(i)
  • Employment ActSection 44(3)
  • Labour Relations Act, 2007Sections 62, 65, 67, 68, 69(a)

Cases cited (3)

  • Inter–Public Universities Council Consultative Forum of Federation of Kenya Employers v Universities Academic Staff Union and 5 Others
    [2018] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Kapa Oil Refineries Ltd
    [2018] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Ltd
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and trade dispute claims (Labour Relations Act, Employment Act); no specific constitutional provision cited

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, "Mercella Muringi Kariuki & 13 others v Kiru Farmers Co-operative Society Limited & another [2019] KEELRC 408 (KLR)", Case Analysis (2019). Cause No. 20 of 2018 (consolidated with Causes Nos. 21–32 and 49 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/408/eng@2019-10-17

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