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ELRCDismissedNot stated in the judgment· [2019] KEELRC 741 (KLR)

Rift Valley Railways Workers Union (K) v China Roads Bridges Corporation; Ministry of Labour and Social Protection & another (Interested Party) eKLR [2019] KEELRC 741 (KLR)

Employment and Labour Relations Court
17 September 2019
HWHellen Wasilwa
1,808 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that unions can represent workers in court even without a recognition agreement with the employer.

What this practically means

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Executive summary

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The Claimant, Rift Valley Railways Workers Union (K), filed a claim on behalf of six grievants against China Roads & Bridges Corporation. Two preliminary matters arose: a Notice of Motion by the Intended 2nd Interested Party, Railways and Allied Workers Union, seeking joinder; and a Preliminary Objection by the Respondent contending that the claim was incompetent because the Claimant had no recognition agreement with the Respondent and therefore lacked locus standi. The Respondent also filed grounds of opposition to the joinder, arguing that no union could be enjoined in a fatally defective claim. The Claimant submitted that a recognition agreement is only relevant to collective bargaining, that membership arises from check-off forms, and that Articles 36 and 41 of the Constitution and ILO Conventions 87 and 98 protect workers' freedom of association and representation. The Respondent relied on Mukhisa Biscuit Manufacturers, KUEVACO, Patrick Kiseki Mutisya and Macfoy, while the Intended Interested Party argued the objections raised factual issues unfit for a preliminary objection. The court held that under Article 41 the right to join and be represented by a union belongs to the employee and is not pegged on any recognition agreement between the union and employer. The Respondent's Preliminary Objection failed and the 2nd Intended Interested Party was allowed to be enjoined. Costs were awarded in the cause.

Key legal issues

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01

Whether lack of a recognition agreement deprives a union of locus standi to represent employees in court

Holding

No - the right to representation flows from membership and Article 41, not from a recognition agreement

Reasoning

Article 41 guarantees every employee the right to join and participate in the activities of a trade union of choice. The contract is between the employee and the union, and on joining, the employee acquires rights including representation in court. A recognition agreement is relevant only to collective bargaining and does not gatekeep litigation representation by a union.

p. 4
02

Whether the joinder application should succeed

Holding

Yes - the 2nd Intended Interested Party was allowed to be enjoined

Reasoning

The court found the two preliminary applications raised the same issue. Having found that the lack of recognition does not defeat locus, the court held the Respondent's preliminary objection failed and permitted the Intended 2nd Interested Party to be joined in the claim, with costs reserved to the cause.

p. 4

Legal principles established

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  • An employee's right to join a trade union of choice, including the right to representation in court, is not pegged on a recognition agreement between the union and the employer

Court orders

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  1. 1.The Respondent's Preliminary Objection fails and is dismissed
  2. 2.The 2nd Intended Interested Party is allowed to be enjoined in this claim
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Articles 36 and 41
  • Labour Relations Act

Cases cited (6)

  • Mukhisa Biscuit Manufacturers Ltd vs. West End Distributors Ltd
    [1969] E.A. 696
  • Kenya Union of Employees of Voluntary & Charitable Organisations (KUEVACO) vs. Board of Governors & Maina Wanjigi Secondary School
    [2015] eKLR
  • Patrick Kiseki Mutisya (suing as the personal representative of the Estate of Nzomo Mutisya (Deceased) vs. K.B Shangani & Sons Limited & Others
    [2012] eKLR
  • Macfoy v United Africa Ltd
    [1961] 3 ALL ER 1169
  • Equity Bank Limited –v- Bryan Yongo & Another
    [2014] eKLR
  • DT Dobie & Co. (K) Ltd vs. Joseph Mbaaria Muchina & Another
    (1980) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 41 of the Constitution and the Labour Relations Act, 2007

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, "Rift Valley Railways Workers Union (K) v China Roads Bridges Corporation; Ministry of Labour and Social Protection & another (Interested Party) eKLR [2019] KEELRC 741 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/741/eng@2019-09-17

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