Union of National Research Institutes Staff of Kenya v Kenya Agricultural And Livestock Research Organization [2020] KEELRC 349 (KLR)
The bottom line
#The court agreed the union could sue but dismissed the pay claim because KALRO couldn't pay without Treasury funds.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a trade union without a simple majority or recognition agreement
The Claimant has locus standi; representation is a constitutional right under Articles 36 and 41 and Section 4 of the Labour Relations Act, and membership suffices to represent employees.
The court distinguished representation from recognition. Article 41(2)(c) and Sections 4(1) and (2) of the Labour Relations Act give every worker the right to join a union, and membership gives the union the right to represent the employee. A simple majority is required only for a recognition agreement under Section 54. The Respondent inherited recognition agreements from defunct institutions and never terminated them. Further, the dispute was properly referred through conciliation under Sections 62-73.
Whether the claim is res judicata
The plea of res judicata fails; the earlier suit concerned negotiation of a CBA, while the present dispute concerns failure to grant annual increments.
Section 7 of the Civil Procedure Act requires that the matter directly and substantially in issue have been heard and finally decided in a former suit between the same parties. In Cause 1272 of 2017 the issue was negotiation of terms and conditions for a proposed CBA, whereas the instant dispute reported to the Minister was failure to grant annual increments in July 2018, October 2018 and January 2019. The issues being different, res judicata is unavailable.
Whether failure to implement the harmonised terms of service breaches the Constitution and employment contracts
Although the claim has merit, the failure to pay was not deliberate but occasioned by lack of Treasury funding beyond the Respondent's control; no orders compelling payment were made.
The Respondent did not deny the non-implementation but showed that monies must be appropriated by Parliament from the Consolidated Fund under Article 206, that Treasury availed Kshs.500 million only for six months, and that the Cabinet Secretary for Agriculture confirmed the National Treasury could not provide additional funding. The TSC case relied on by the Respondent was distinguishable, but since funding was not availed, an order to pay would be futile and the Respondent undertook to pay once funds are available.
Legal principles established
#- A trade union's right to represent an employee arises from membership and does not require a simple majority or a recognition agreement; a simple majority is only necessary for purposes of a recognition agreement for collective bargaining.
- A dispute referred to the Industrial Court after conciliation under Sections 62-73 of the Labour Relations Act is properly before the court.
- The subject matter of a suit for res judicata purposes is determined by the facts and prayers sought, not by the orders granted.
- Courts do not make orders in futility.
Court orders
#- 1.The claim is dismissed
- 2.No orders for costs - each party bears its own costs
- Jurisdiction invoked
- Referral of a trade dispute to the Industrial Court under Sections 62-73 of the Labour Relations Act, as read with Rule 5 of the Employment and Labour Relations Court Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Union of National Research Institutes Staff of Kenya v Kenya Agricultural And Livestock Research Organization [2020] KEELRC 349 (KLR)", Case Analysis (2020). ELRC Cause (Memorandum of Claim dated 17th March 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/349/eng@2020-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.