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ELRCPartially AllowedCause No. 1422 of 2018· [2020] KEELRC 646 (KLR)

Kenya Shipping Clearing Freight Logistics and Warehouses Workers Union v Vegpro (K) Limited (VP Group); Kenya Union of Commercial Food and Allied Workers (Interested Party) [2020] KEELRC 646 (KLR)

Employment and Labour Relations Court
17 July 2020
1,992 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango J) determined two applications in a recognition dispute between the Kenya Shipping Clearing Freight Logistics and Warehouses Workers Union and Vegpro (K) Limited (VP Group), with the Kenya Union of Commercial Food and Allied Workers joined as an interested party. The claimant sought an order compelling the respondent to sign a recognition agreement and to deduct and remit union dues on check-off forms forwarded between 2016 and 2018, alleging the respondent had sacked unionised employees and changed its name to defeat recognition. The respondent filed a preliminary objection arguing lack of locus standi under Sections 54, 57, 59 and 31(2) of the Labour Relations Act, that an unrecognised union is a bystander to disputes, and that the suit was sub judice given two pending causes. The court applied the Mukisa Biscuit test for preliminary objections and rejected each ground: Section 54 is only a bar to collective bargaining and not to representing members; the union's locus derives from membership evidenced by check-off forms; recognition is the very relief sought; and res judicata cannot apply to recognition disputes because union membership is fluid. The P.O was dismissed as an abuse of court process, with costs assessed at Kshs. 50,000 against the respondent, which had never filed a defence. The claimant's application was dismissed because its prayers require evidence, particularly given the Interested Party's competing claims of membership and an existing recognition agreement; the substantive issues were reserved for trial.

Key legal issues

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01

Whether want of a recognition agreement deprives a trade union of locus standi to sue

Holding

No. Locus to represent its members rests on membership evidenced by check-off forms; Section 54 only bars collective bargaining before recognition, and the claimant seeks recognition itself.

Reasoning

The court applied the Mukisa Biscuit definition of a preliminary objection and held that the subject matter of the dispute is recognition itself. The union's locus derives from membership evidence annexed to the memorandum of claim. The respondent, having filed no defence, could not allege want of locus without pleading the facts. Sections 57 and 59, cited by the respondent, concern collective bargaining and CBA registration, which are not the subjects of this claim.

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02

Whether prior and pending causes between the parties render the suit res judicata or sub judice

Holding

No. Cause No. 2018 of 2016 and Cause No. 963 of 2017 are not before the court and their relevance was not demonstrated; recognition disputes cannot be res judicata because membership is fluid.

Reasoning

The respondent relied on two pending causes raising similar issues. The court found the respondent had not demonstrated their relevance and, in any event, a union without a simple majority at one time may attain it shortly afterwards and reapply for recognition. Fluid membership defeats res judicata in recognition disputes.

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03

Whether the notice of preliminary objection amounted to an abuse of court process warranting costs

Holding

Yes. The P.O was completely unwarranted and intended to delay the matter, given the respondent had never filed a defence.

Reasoning

The court took into account that the suit was filed on 4th October 2018 and the respondent filed a notice of appointment on 23rd October 2018 but never filed a defence. The P.O wasted the court's time and was intended to delay conclusion of the matter; the respondent was condemned to costs assessed at Kshs. 50,000.

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04

Whether the claimant's application dated 4th October 2018 should be allowed without a full hearing

Holding

No. The orders sought require evidence, particularly given the Interested Party's competing membership claims and existing recognition agreement with the respondent.

Reasoning

The application sought the same orders as the claim. Since joinder of the Interested Party, which claims an existing recognition agreement and several CBAs with the respondent, the competing membership claims require testing by evidence at the hearing of the claim. The application was therefore dismissed with no order as to costs.

p. 3

Legal principles established

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  • Section 54 of the Labour Relations Act does not preclude a trade union from representing employees in its membership; it is only a bar to collective bargaining before recognition.
  • A union cannot be said to lack locus standi for want of a recognition agreement when the very relief sought in the claim is a recognition agreement.
  • Recognition disputes are not amenable to a plea of res judicata because union membership is fluid and can change drastically over a short period.

Court orders

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  1. 1.The preliminary objection dated 29th January 2019 is dismissed
  2. 2.The respondent is condemned to pay costs of the preliminary objection to the claimant, assessed at Kshs. 50,000
  3. 3.The claimant's application dated 4th October 2018 is dismissed, with the issues raised to be dealt with at the hearing of the claim
  4. 4.No orders for costs on the application dated 4th October 2018

Authorities

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Legislation

  • Labour Relations ActSections 54(1), (2), (3), 57(1), 59(1)(a), (b), (c), 31(2)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (3)

  • Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited
    (1969) EA 696
  • Kenya Shoe and Workers Union v Modern Soap Factory Ltd
    [2017] eKLR
  • Communication Workers' Union v Safaricom Limited
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade disputes concerning recognition agreements and union dues (Labour Relations Act)

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 Shipping Clearing Freight Logistics and Warehouses Workers Union v Vegpro (K) Limited (VP Group); Kenya Union of Commercial Food and Allied Workers (Interested Party) [2020] KEELRC 646 (KLR)", Case Analysis (2020). Cause No. 1422 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/646/eng@2020-07-17

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