Kenya Hotels and Allied Workers Union v Tourism Promotion Services (Management) Limited t/a Serena Lodges and Hotels; Kenya Union of Domestic, Hotels, Educational Institutions and Hotel Hospital Workers & another (Interested Parties) [2020] KEELRC 413 (KLR)
The bottom line
#The Employment and Labour Relations Court dismissed a hotel union's recognition suit because the same issues had already been decided in earlier cases between the same parties.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The suit is res judicata; the recognition and agency fee issues were fully determined in ELRC Petition No.5 of 2013, Cause 1194 of 2014 and other suits between the same parties
The respondent and interested parties showed that the same issues - whether individual members of the employers' association can be compelled to accord recognition when the association has a recognition agreement and CBA with KUDHEIHA, and whether agency fees levied on members who withdrew from KUDHEIHA are lawful - had been determined by courts of concurrent jurisdiction in prior litigation between the same parties. Continuing to litigate the same issues amid conflicting decisions would never end the dispute, so the court found the matter res judicata and declined to determine the merits afresh.
Conciliator's report
The court declined to adopt the Conciliation report dated 30.9.2019 because the suit is res judicata
Having found the entire suit res judicata, the court declined to determine recognition and refund of agency fees afresh and, for the same reason, declined to adopt the Conciliator's report. The 2nd Interested Party had also argued the Conciliator exceeded her mandate by dealing with recognition when the reference was only on agency fees.
Legal principles established
#- Litigation over the same issues between the same parties must come to an end; repeating suits over matters already determined by courts of concurrent jurisdiction is res judicata
- Conflicting first-instance decisions on the same issue between the same players can only be settled by the Court of Appeal
Court orders
#- 1.The suit is dismissed
- 2.No order as to costs
- 3.Refusal to adopt the Conciliation report dated 30.9.2019
- Jurisdiction invoked
- Section 5 of the Labour Relations Act, 2007 read together with Article 23 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Hotels and Allied Workers Union v Tourism Promotion Services (Management) Limited t/a Serena Lodges and Hotels; Kenya Union of Domestic, Hotels, Educational Institutions and Hotel Hospital Workers & another (Interested Parties) [2020] KEELRC 413 (KLR)", Case Analysis (2020). Employment Cause (number not stated in judgment; filed 21.5.2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/413/eng@2020-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.