Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v Comboni Polytechnic [2019] KEELRC 1990 (KLR)
The bottom line
#Kenya's Employment Court ruled that an unregistered CBA cannot be enforced and ending term contracts with an invitation to reapply is not a redundancy.
What this practically means
#Executive summary
#Key legal issues
#Whether a valid CBA bound the parties
No enforceable CBA existed as the CBA relied upon was not registered and the copy filed was unsigned by the respondent or the Catholic Diocese of Nakuru
Section 59(5) of the Labour Relations Act requires registration of a collective agreement with the Industrial Court before it becomes enforceable. The CBA attached to the memorandum of claim was not signed by the respondent, the Catholic Diocese of Nakuru or the Kenya Catholic Secretariat representative, and the claimant did not demonstrate registration. Its terms therefore cannot be applied or enforced in this suit.
Whether the terminations amounted to a redundancy
The notice dated 15 November 2014 did not declare a redundancy; it ended contracts and invited reapplication, and was valid and lawful
The notice notified all employees that contracts would lapse on 31 December 2014 and invited them to reapply. Taking into account that prior term contracts had lapsed and employees fell under section 35 of the Employment Act, the notice was assessed as valid. A notice ending contract and inviting application for the same positions does not fall under section 40 on redundancy. Those who declined to reapply ended their own employment.
Unionisation and the claimant's capacity to engage the respondent
Without recognition or a Minister's order for check-off, the union's intervention by letters seeking to engage the respondent was of no effect
Article 41 rights to unionise are actualised under the Labour Relations Act, which requires a Minister's order for deduction of union dues. Dues were paid intermittently, some directly, and no order directing deduction was shown. Without recognition of the claimant by the respondent, the union had no basis to engage the employer on the notices issued.
Res judicata and capacity regarding particular grievants
The claim for Dimo Alfred Opiyo was res judicata following dismissal of Nakuru Cause No. 160 of 2013; the claim for Mary Nanguru failed for lack of capacity as she died before suit
Opiyo's summary dismissal had been addressed and the claim dismissed in Nakuru Cause No. 160 of 2013, so re-litigating his claims was bad practice. Mary Nanguru died before 2014 and no letters of administration were produced giving the claimant capacity to sue for her estate. Alexander Temesi Nabwaya was an intern, not an employee, and was not served with the notice.
Whether claims for arrears, leave and allowances were time barred
Claims premised on the 2006-2009 CBA arrears were filed outside the three-year limitation period under section 90 of the Employment Act
The suit was filed on 8 December 2014 while the claims arose from arrears due from 2006 to 2009. Section 90 of the Employment Act bars such claims after three years, and the court has no discretion to extend time in contractual matters, as held in the authorities cited. The leave, house allowance and underpayment claims all depended on the unregistered CBA and were likewise lost in time.
Legal principles established
#- A collective agreement only becomes enforceable upon registration with the Industrial Court under section 59(5) of the Labour Relations Act
- A notice ending contract and inviting applications for the same positions does not amount to a redundancy under section 40 of the Employment Act
- Where employees pay union dues intermittently or directly without a Minister's order, the union has not established recognition entitling it to engage the employer
- The limitation period under section 90 of the Employment Act cannot be extended by the court in contractual claims
Court orders
#- 1.Dismissal of the claimant's case
- 2.Costs to the respondent, assessed at Ksh. 50,000.00
- Jurisdiction invoked
- Employment and labour relations jurisdiction under Article 162(2) of the Constitution (Employment and Labour Relations Court Act); the judgment does not expressly cite the provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v Comboni Polytechnic [2019] KEELRC 1990 (KLR)", Case Analysis (2019). Cause No. 132 of 2015 (formerly Nairobi Cause No. 2259 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1990/eng@2019-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.