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ELRCDismissedELRC Cause, Mombasa (Memorandum of Claim dated 28th February 2018)· [2019] KEELRC 532 (KLR)

Kenya Engineering Workers Union v Hebatullah Brothers Limited (Cause 91 of 2018) [2019] KEELRC 532 (KLR)

Employment and Labour Relations Court
24 October 2019
LNLINNET NDOLO
656 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a union's claims because it lacked current proof of members and could not name the employees it sought to protect.

What this practically means

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Executive summary

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The Claimant, a trade union registered to represent workers in the Engineering Sector, filed a Memorandum of Claim dated 28th February 2018 seeking orders to compel the Respondent to deduct and remit union dues, to convert long serving casual employees to permanent terms of employment, and to issue appointment letters to employees who had served for at least four months. The Claimant relied on Article 41 of the Constitution, Sections 48 and 54 of the Labour Relations Act, Section 37 of the Employment Act, and Clause 20 of the CBA, asserting a signed Recognition Agreement and CBA between the parties. The dispute had been referred to conciliation; the Respondent failed to participate and the Conciliator certified the dispute unresolved on 29th May 2017. The Respondent did not respond to the claim despite due service, and the Claimant prosecuted its claim by written submissions. The court noted that despite the specific prayers, no evidence was presented to back the claim apart from a check off form dated 17th September 2016. Applying the principle from Bakery Confectionery (Rika J) and Kenya Shoe and Leather Workers Union that recognition and membership-based orders require verifiable, tangible evidence, the court held that a check off form signed in 2016 could not ground an order for deduction of dues in 2019 given the fluidity of labour. The claims for conversion of casuals and issuance of appointment letters failed because the affected employees were not identified, and the court does not issue orders at large. The entire claim was dismissed with no order for costs.

Key legal issues

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01

Deduction and remittance of union dues

Holding

The claim fails for want of evidence of current membership

Reasoning

Although the parties had a Recognition Agreement and CBA, the Claimant produced only a check off form dated 17th September 2016. Union dues are deducted from the salaries of specific employees, not the employer's coffers, and given labour mobility current evidence of membership is required. The check off form from 2016 could not support an order in 2019.

p. 2
02

Conversion of casual employees to permanent terms and issuance of appointment letters

Holding

These claims fail because the affected employees were not identified

Reasoning

The Claimant sought conversion of casuals to permanent employment and issuance of appointment letters but did not identify the affected employees. The Court cannot issue orders at large, and in the absence of evidence identifying the employees, these heads of claim fail.

p. 2

Legal principles established

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  • A claim for deduction of union dues requires tangible, current evidence of membership; a stale check off form cannot sustain the order
  • The Court does not issue orders in respect of unidentified persons

Court orders

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  1. 1.The Claimant's entire claim is dismissed
  2. 2.No order for costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Labour Relations ActSection 48
  • Labour Relations ActSection 54
  • Labour Relations ActSection 57
  • Employment ActSection 37

Cases cited (2)

  • Bakery Confectionery, Food Manufacturing and Allied Workers Union (K) v Mombasa Maize Millers Limited & 3 others
    [2016] eKLR
  • Kenya Shoe and Leather Workers Union v Crown Industries Limited & another
    [2017] eKLR
Jurisdiction invoked
Article 41 of the Constitution, Labour Relations Act and Employment Act (employment and labour relations dispute)

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, "Kenya Engineering Workers Union v Hebatullah Brothers Limited (Cause 91 of 2018) [2019] KEELRC 532 (KLR)", Case Analysis (2019). ELRC Cause, Mombasa (Memorandum of Claim dated 28th February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/532/eng@2019-10-24

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