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ELRCDismissedNot stated on the face of the extract· [2020] KEELRC 336 (KLR)

Kenya National Private Security Workers Union v Rovio Security Limited (Cause 2527 of 2016) (Employment and Labour) [2020] KEELRC 336 (KLR)

Employment and Labour Relations Court
2 October 2020
RSRadido Stephen
1,232 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment and Labour Relations Court confirmed that a trade union can sue for its members in court without a recognition agreement, and dismissed the employer's objection with costs.

What this practically means

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Executive summary

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The Respondent raised a four-limbed preliminary objection in an employment cause brought by the Kenya National Private Security Workers Union on behalf of a grievant. The Respondent contended that the Union was a stranger to the suit and lacked locus standi absent proof of the grievant's membership and absent a recognition agreement; that the suit was premature because the dispute resolution mechanisms in sections 62, 67 and 69 of the Labour Relations Act had not been exhausted; and that the suit was an abuse of court process. In support, the Respondent cited several first-instance authorities requiring membership or recognition agreements, and authorities on prematurity. The Court observed that ELRC judges had taken differing positions on union competence to sue without a recognition agreement, but held that the question had been settled by the Court of Appeal in Modern Soap Factory v Kenya Shoe and Leather Workers Union (Mombasa Civil Appeal No. 37 of 2019). That authority, relying on Articles 41 and 258 of the Constitution and Section 22 of the Employment and Labour Relations Act, distinguished a union's right to represent members in court from collective bargaining under a recognition agreement. This Court endorsed that binding authority, adding that proof of the grievant's membership was a matter for the hearing on the merits. On prematurity, the Court found the objection frivolous and vexatious: the record contained a letter reporting the trade dispute to the Cabinet Secretary for Labour, invitations to conciliation, a Certificate of Unresolved Dispute dated 17 August 2016, and the Respondent's own Response acknowledged receipt of a conciliation invitation. The preliminary objection was dismissed with costs to the Union, and directions issued for exchange of documents and witness statements by 16 October 2020, with hearing to be prioritised.

Key legal issues

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01

Trade union locus standi in the absence of a recognition agreement

Holding

The Court endorsed the binding Court of Appeal authority that a recognition agreement is not a prerequisite to a union's competence to sue on behalf of its members.

Reasoning

The Court noted that judges of the ELRC had taken differing positions on this question, but that the Court of Appeal in Modern Soap Factory v Kenya Shoe and Leather Workers Union had settled it. Relying on Article 41 of the Constitution, Article 258(2)(d) and Section 22 of the Employment and Labour Relations Act, the Court of Appeal distinguished representation in court from collective bargaining, which depends on a recognition agreement. This Court adopted that reasoning as binding.

p. 2
02

Prematurity of the suit under Part VIII of the Labour Relations Act

Holding

The objection that the dispute was prematurely brought failed because the Union had reported the dispute, conciliation was attempted, and a Certificate of Unresolved Dispute existed.

Reasoning

The Court found the objection frivolous and vexatious because the record included a letter dated 21 April 2016 reporting the trade dispute to the Cabinet Secretary for Labour, letters of 11 and 29 July 2016 inviting parties to conciliation, and a Certificate of Unresolved Dispute dated 17 August 2016. The Respondent's own Response acknowledged receipt of a letter from the Sub-County Labour Office inviting it to a conciliation meeting.

p. 2

Legal principles established

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  • Lack of a recognition agreement does not undermine a trade union's locus standi to institute proceedings on behalf of its members; a recognition agreement governs collective bargaining, not court representation.
  • Whether the grievant was a member of the union is a matter of evidence to be determined at the hearing on the merits, not at a preliminary stage.

Court orders

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  1. 1.The Preliminary Objection is found without merit and dismissed with costs to the Union
  2. 2.Parties directed to file/exchange any further documents and witness statements on or before 16 October 2020
  3. 3.A hearing date to be taken in the registry on a priority basis

Authorities

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Legislation

  • Constitution of KenyaArticle 41 (41(2)(c))
  • Constitution of KenyaArticle 258(2)(d)
  • Labour Relations ActSection 2 (definition of recognition agreement)
  • Labour Relations ActSections 54, 62, 67, 69, 69(a)
  • Labour Relations ActPart VIII
  • Employment and Labour Relations ActSection 22

Cases cited (9)

  • David Benedict Omulama & Ors v Registrar of Trade Unions & Ar
    (2014) eKLR
  • Kenya National Union of Nurses v Attorney General & Ar
    (2012) eKLR
  • Kenya National Private Security Workers Union v Lavington Security Ltd
    (2013) eKLR
  • Transport and Allied Workers Union v DHL Global Forwarding (K) Ltd
    Cause No. 745 of 2020
  • Transport Workers Union v Crown Bus Service Ltd
    (2017) eKLR
  • Kenya Shoe & Leather Workers Union v Modern Soap Factory Ltd
    (2017) eKLR
  • Modern Soap Factory v Kenya Shoe and Leather Workers Union
    Mombasa Civil Appeal No. 37 of 2019 (unreported)
  • Inter-Public Universities Councils Consultative Forum of the Federation of Kenya Employers v Universities Academic Staff Union & Ors
    (2018) eKLR
  • Monicah Wanjiku Kanyigi v Our Lady of Mercy Secondary School
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Act, Section 22 (representation of parties before the Court)

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 National Private Security Workers Union v Rovio Security Limited (Cause 2527 of 2016)  (Employment and Labour) [2020] KEELRC 336 (KLR)", Case Analysis (2020). Not stated on the face of the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/336/eng@2020-10-02

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