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ELRCDismissedCause No. 181 of 2016 (statement of claim filed 15.03.2011; reference to Cause No.181 of 2016 is a separate matter)· [2019] KEELRC 1591 (KLR)

Stephen Kabur1a Ruteere v Kenya Union of Domestic, Hotels, Educational Institutions Hospital Workers (Kudheiha Workers) [2019] KEELRC 1591 (KLR)

Employment and Labour Relations Court
24 May 2019
2,416 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The claimant, formerly a Nursing Officer III at Kenyatta National Hospital and a member of the respondent trade union, sued the union seeking a declaration that the union's failure to provide legal and financial advice upon his interdiction (December 2013) and dismissal (October 2017) was unlawful and unfair, together with Kshs.4,022,000, interest and damages. He contended that the union's constitution (Rule 13), the Labour Relations Act, 2007, the recognition and collective agreements obliged the union to represent him. The respondent denied liability, contending the claimant bypassed the agreed grievance procedure by not reporting to the chief shop-steward and works committee, engaged his own advocates without the union's authority, and had joined the rival Kenya National Union of Nurses (KNUN). The court found that the claimant never presented his predicament about the interdiction to the union at branch or head office level and unilaterally hired advocates in both the civil and criminal cases, so the union was not liable for the fees. The 12-month maximum compensation claim under section 49 of the Employment Act was misconceived as there was no employment relationship between a member and the union. Further, the claimant had joined KNUN before dismissal and was not acting in good faith. Following Rika J.'s decision in David Musyoki Watuku v Mabati Rolling Mills, the court held that shop-floor stewards are the union's eyes and ears and the claimant's failure to use the procedure defeated the claim. The statement of claim was dismissed with costs to the respondent.

Key legal issues

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01

Whether the respondent failed to render assistance regarding the interdiction

Holding

No liability; the claimant never reported the interdiction to the union at branch or head office level and unilaterally hired a lawyer

Reasoning

The evidence showed the claimant did not present his predicament about the interdiction to the union at branch or head office levels. He testified he unilaterally hired a lawyer upon interdiction and agreed to pay, with the union not party to that decision. The agreed procedure required grievances to go first to the shop-steward and works committee.

p. 3
02

Whether the union was liable for fees of advocates engaged in the criminal and civil cases

Holding

The union is not liable; the claimant acted alone without the union's authority to hire or negotiate fees

Reasoning

The claimant exclusively decided to hire a lawyer for the criminal case and for the civil suit; the union never approved the engagement. Only the union's National Executive Board could hire advocates, and a member who hires his own advocates cannot expect the respondent to meet the financial implications.

p. 3
03

Whether the claimant was entitled to maximum compensation under section 49 of the Employment Act, 2007

Holding

The prayer was misconceived because there was no employment relationship between a union member and the union

Reasoning

Section 49 compensation is payable by an employer for unjustified or unfair termination. The claimant's employer was the Hospital, not the respondent union. There was no employment relationship between the claimant and the union, so the relief sought against the union was misconceived.

p. 3
04

Whether the claimant could expect assistance after joining KNUN

Holding

No; the claimant had joined the rival union KNUN before dismissal, so he was not acting in good faith in demanding assistance from the respondent

Reasoning

The claimant admitted writing in September 2014 to resign from the respondent and having joined KNUN. As at dismissal in 2017 he belonged to a rival union. Legitimate expectation of assistance from the respondent was therefore misconceived, and his demands were made in bad faith.

p. 3

Legal principles established

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  • A trade union member who bypasses the shop-floor grievance procedure (chief shop-steward and works committee) and unilaterally engages advocates cannot hold the union liable for failure to represent him

Court orders

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  1. 1.Judgment entered for the respondent against the claimant for dismissal of the claimant's statement of claim
  2. 2.Costs of the suit awarded to the respondent

Authorities

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Legislation

  • Constitution of Kenya2010
  • Labour Relations Actsection 55
  • Employment Actsection 49

Cases cited (1)

  • David Musyoki Watuku –Versus- Mabati Rolling Mills & Another
    [2009]eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a trade union member's claim for failure to render representation and financial assistance, founded on the Labour Relations Act, 2007, the Employment Act, 2007 and the respondent's registered constitution

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, "Stephen Kabur1a Ruteere v Kenya Union of Domestic, Hotels, Educational Institutions Hospital Workers (Kudheiha Workers) [2019] KEELRC 1591 (KLR)", Case Analysis (2019). Cause No. 181 of 2016 (statement of claim filed 15.03.2011; reference to Cause No.181 of 2016 is a separate matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1591/eng@2019-05-24

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