Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedNot stated in the judgment· [2020] KEELRC 824 (KLR)

Kenya National Union of Nurses v Kitengela Medical Services [2020] KEELRC 824 (KLR)

Employment and Labour Relations Court
19 June 2020
RSRadido Stephen
1,539 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ordered an employer to start deducting nurses' union dues but refused to force union recognition or reinstate dismissed employees yet.

What this practically means

#

Executive summary

#
The Kenya National Union of Nurses moved the Employment and Labour Relations Court by notice of motion dated 13 December 2019 seeking, pending the hearing of the main suit, orders compelling the Respondent employer to deduct and remit union dues per check-off lists served in November 2019 and Legal Notice No. 160 of 2018; directing the Cabinet Secretary for Labour to appoint a conciliator; payment of Kshs 45,000 salary owed to Walter Awino; an injunction against intimidation and harassment of Union members; payment of accrued undeducted dues from the Respondent's own funds; reinstatement of three dismissed employees (Walter Awino, Mary Njeri and Palecia Awino Opiti); execution of a recognition agreement within 7 days; and commencement of CBA negotiations. Radido Stephen J isolated the issues as dismissals, the recognition agreement, and union dues. The Court held that unfair termination claims are personal to the employees under the Employment Act, 2007 and require separate proceedings, and declined to reinstate at the interlocutory stage. On recognition, the Court held that the Union had not attempted or exhausted the conciliation mechanisms under Part VIII of the Labour Relations Act and that recognition cannot properly be granted through an interlocutory application, directing the Union to report a trade dispute to the Cabinet Secretary. However, the Union satisfied the statutory conditions under section 48 of the Labour Relations Act (Ministerial order, Form S particulars and designated bank account), establishing a prima facie case for the check-off orders, reinforced by section 19 of the Employment Act on employees' freedom to dispose of wages. The Court granted the check-off order effective 1 July 2020 with a default sanction, and an anti-intimidation order, with costs abiding the main Cause.

Key legal issues

#
01

Interim reinstatement of dismissed employees

Holding

Refused; unfair termination claims must be brought separately by the employees under the Employment Act, 2007

Reasoning

The Court distinguished between the Union's collective rights and the individual employees' personal claims for unfair termination, which are anchored in the Employment Act, 2007 and cannot be determined on an interlocutory application in a suit brought by the Union qua union. However, the Court found it probable that the Respondent exerted undue pressure on employees who joined the Union, and protected them with an anti-intimidation order instead.

p. 2
02

Compelled recognition agreement

Holding

Refused; Union must first pursue the dispute-resolution mechanism in Part VIII of the Labour Relations Act by reporting a trade dispute to the Cabinet Secretary

Reasoning

Section 74 of the Labour Relations Act allows recognition disputes to be referred to Court under a certificate of urgency, but the legal framework recognises the vital role of conciliation. The Union did not demonstrate it had attempted or exhausted those statutory mechanisms. Further, whether a Union meets the statutory threshold for recognition requires evidence, making an interlocutory recognition order legally imprudent.

p. 2
03

Deduction and remittance of union dues

Holding

Granted; the Union established a prima facie case under section 48 of the Labour Relations Act, supported by section 19 of the Employment Act

Reasoning

The statutory test under sections 48 and 50 of the Labour Relations Act requires an application to the Cabinet Secretary resulting in a Ministerial order, particulars of employees who joined the Union, and a designated bank account. The Union filed Form S check-off forms referencing Legal Notice No. 160 of 13 June 2018 and a designated bank account. By signing Form S, employees were exercising their right of association and freedom to dispose of their wages under section 19 of the Employment Act.

p. 3

Legal principles established

#
  • A court would not grant an order for recognition of a trade union through an interlocutory application; the statutory conciliation mechanisms in Part VIII of the Labour Relations Act must first be pursued
  • Where a Union satisfies the statutory conditions for check-off under section 48 of the Labour Relations Act (Ministerial order, Form S particulars, designated bank account), it establishes a prima facie case for interim orders compelling deduction and remittance of union dues
  • Claims of unfair termination are personal to the employees and must be instituted in separate proceedings under the Employment Act, 2007; they do not belong to the Union qua union

Court orders

#
  1. 1.Interim order directing the Respondent, with effect from 1 July 2020, to commence deductions and remittance of union dues as per the check-off lists of 5 November 2019 (30 members) and to continue remittance per Legal Notice No. 160 of 2018, pending hearing and determination of the main suit
  2. 2.In default of compliance, the Respondent to pay from its own funds the union dues payable to the Union by employees who have joined it
  3. 3.Interim order restraining the Respondent, its agents and representatives from any act of intimidation or harassment of Union members, including forcing them to withdraw from the Union
  4. 4.Costs to abide the determination of the main Cause

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 159(2)(c)
  • Employment Act, 2007sections 19
  • Labour Relations Actsections 48, 50, 74; Part VIII
  • Legal Notice No. 160 of 2018Ministerial order on union dues
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Relations Act and Employment Act, 2007; application certified urgent

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya National Union of Nurses v Kitengela Medical Services [2020] KEELRC 824 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/824/eng@2020-06-19

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