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ELRCDismissedNotice of Motion dated 15th November 2019 (ELRC suit, Nairobi)· [2020] KEELRC 284 (KLR)

Kenya Private Universities Workers Union v United States International University [2020] KEELRC 284 (KLR)

Employment and Labour Relations Court
22 October 2020
1,936 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to reopen a union dues dispute because it was already decided—the union must instead enforce the earlier court order through execution.

What this practically means

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Executive summary

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The Kenya Private Universities Workers Union (Claimant/Applicant) filed a Notice of Motion dated 15th November 2019 against United States International University under Section 12 of the ELRC Act and Sections 48, 56 and 74 of the Labour Relations Act, seeking an order compelling the Respondent to deduct and remit union dues from members who had signed check-off forms pending determination of the suit, and prohibitory orders restraining the Respondent from victimising unionisable employees on grounds of trade union affiliation. The Union alleged that the Respondent's HR agents refused to receive check-off forms, coerced members to withdraw, and failed to remit dues totalling Kshs. 158,570.09 as at January 2020. In submissions the Union sought Kshs. 755,450/= in undeducted dues plus interest and an order compelling the Respondent to sign a recognition agreement. The Respondent, through a Replying Affidavit of Night Nzovu and a Notice of Preliminary Objection dated 20th August 2020, contended that it had complied with prior orders, that employees had voluntarily withdrawn, and that the application was res judicata, rendering the Court functus officio. Justice Hellen Wasilwa held that the issue of access for recruitment had already been determined by Judge Ongaya's order of 21/11/2018, that the order appeared to have determined both the Claim and Application, and that the application was therefore res judicata with nothing to add. The Court directed the Applicant to pursue execution proceedings for any non-compliance and made no order as to costs.

Key legal issues

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01

Res judicata and functus officio

Holding

The application was res judicata; the access-to-recruit issue was determined by Ongaya J on 21/11/2018 and the claim was also determined, so nothing remains to be added.

Reasoning

The court noted that Judge Ongaya's order of 21/11/2018 granted the Claimant access to recruit union members and indicated there would be no costs for both the Claim and Application, showing the Claim had been determined and the Respondent already directed to do what the Applicant now seeks. Although the present application concerns deduction and remittance of dues, the earlier order had determined the Claim and Application together, leaving only execution as the recourse.

p. 3
02

Deduction and remittance of union dues under Section 48 of the Labour Relations Act

Holding

Not adjudicated on the merits because the application was barred by res judicata; the Applicant's remedy is execution of the earlier orders.

Reasoning

The court observed that the issue in the application relates to deduction and remittance of union dues and restraint from victimisation, but found no basis to entertain it afresh given the prior determination. The Respondent's preliminary objection on res judicata and functus officio was effectively upheld in substance.

p. 3

Legal principles established

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  • Where a court has already determined a claim and application and extracted a decree, a fresh application seeking similar relief is res judicata and the remedy lies in execution, not fresh litigation.

Court orders

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  1. 1.The application is res judicata and there is nothing to add to the orders of Judge Ongaya of 21/11/2018
  2. 2.The Applicant's recourse is to pursue execution proceedings if the Respondent has not complied with the Court orders
  3. 3.No order of costs
Jurisdiction invoked
Section 12 of the ELRC Act; Sections 48, 56 and 74 of 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, "Kenya Private Universities Workers Union v United States International University [2020] KEELRC 284 (KLR)", Case Analysis (2020). Notice of Motion dated 15th November 2019 (ELRC suit, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/284/eng@2020-10-22

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