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ELRCDismissedNot stated in the judgment· [2020] KEELRC 42 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Nyambene Coffee Mills [2020] KEELRC 42 (KLR)

Employment and Labour Relations Court of Kenya
12 November 2020
1,337 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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An employment claim in Kenya failed because the union lacked recognition and the worker couldn't prove unpaid salary or underpayment with evidence.

What this practically means

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Executive summary

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The Kenya Union of Commercial, Food and Allied Workers sued Nyambene Coffee Mills on behalf of its member, Silas Njeru (the Grievant), alleging he was employed verbally in January 2014 as a night watchman at Kshs. 3,900 per month, was never given an appointment letter, went unpaid for about 19 months, and had his services orally terminated on 14th July 2016 without notice. The union claimed terminal benefits, leave, off days, public holidays, overtime, service gratuity and underpayments totalling Kshs. 353,155.01. The suit was undefended; only the 1st and 3rd Respondents entered appearance through counsel. The court, emphasising that even an undefended claim must be proved, first struck out the 2nd and 3rd Respondents as superfluous since the grievant's employment was with the 1st Respondent alone. It then found the union lacked standing, having admitted there was no recognition agreement and having failed to demonstrate it represented a simple majority of unionisable employees as required under the Labour Relations Act; the union's name was struck out and replaced with that of Silas Njeru. On the merits, the bank statements showed salary payments by Nyambene Coffee Mills until April 2015 and thereafter by Caffimax Limited from May 2015, undermining the claim of non-payment for much of 2015. The underpayment claim failed because the relevant Regulation of Wages (Amendment) Order was not exhibited. The court found the claim not proved on a balance of probabilities and dismissed it with no orders as to costs.

Key legal issues

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01

Union standing in employment claims

Holding

The Claimant Union lacked standing to sue on behalf of the Grievant as it had no recognition agreement and did not demonstrate it represented a simple majority of unionisable employees; its name was struck out and replaced with that of the Grievant

Reasoning

The court noted the admission in paragraph 5 of the pleading that no recognition agreement existed. Under the Labour Relations Act, recognition requires the union to represent a simple majority of unionisable employees. The Claimant did not attempt to show it met this threshold. The court therefore held the union had no business filing the suit and substituted the Grievant as claimant.

p. 2
02

Unnecessary joinder of the 2nd and 3rd Respondents

Holding

The 2nd and 3rd Respondents were superfluous since the grievant was an employee of the 1st Respondent only; their names were struck out

Reasoning

From the pleadings and evidence, the grievant's employment relationship was with the 1st Respondent, Nyambene Coffee Mills, as the claimant itself pointed out in its statement of claim and evidence. Suing the 2nd Respondent (the Managing Director) and the 3rd Respondent added nothing to the claim.

p. 2
03

Proof of non-payment of salary and underpayments

Holding

The claim of non-payment of salary for much of 2015 was without foundation, as bank statements showed salary payments until April 2015 and payments by Caffimax Limited from May 2015; the underpayment claim failed for want of the relevant wages order

Reasoning

The court scrutinised the bank statements filed, which showed deposits from Nyambene Coffee Mills until April 2015 and thereafter payments by Caffimax Limited, suggesting the grievant had moved employment circa April 2015. On underpayment, the claimant failed to attach the applicable Regulation of Wages (Amendment) Order to establish the alleged shortfall against the General Order.

p. 2
04

Standard of proof in an undefended claim

Holding

Even where a suit is undefended, the claimant must still prove the case on a balance of probabilities; the claim was dismissed for failure to do so

Reasoning

The court emphasised that an undefended claim does not automatically succeed. The court must examine the pleadings and evidence on record. Having done so, it found the claimant had not discharged the burden of proving the claim on a balance of probabilities, and dismissed it notwithstanding the respondents' non-participation beyond entering appearance.

p. 2

Legal principles established

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  • A trade union can only be recognised by an employer if it represents a simple majority of unionisable employees; without meeting that threshold a union has no business filing suit on behalf of an employee
  • Even in an undefended suit, the court must scrutinise the facts and evidence before making a determination
  • A party who alleges underpayment must exhibit the relevant Regulation of Wages Order to prove the alleged underpayments

Court orders

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  1. 1.Struck out the names of the 2nd and 3rd Respondents from the suit
  2. 2.Struck out the name of the Claimant Union and replaced it with the name of Silas Njeru
  3. 3.Dismissed the Claimant's claim with no orders as to costs

Authorities

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Legislation

  • Labour Relations ActNot specified
  • Regulation of Wages (Amendment) OrderNot specified
Jurisdiction invoked
Referral of a Trade Dispute to the Court by the Conciliator under the Labour Relations Act, evidenced by a Referral Certificate issued on 23rd October 2018

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 Union of Commercial, Food and Allied Workers v Nyambene Coffee Mills [2020] KEELRC 42 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/42/eng@2020-11-12

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