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ELRCDismissedNot stated in the judgment· [2020] KEELRC 1332 (KLR)

Kenya Union of Commercial Food & Allied Workers v Blow Plasts Ltd [2020] KEELRC 1332 (KLR)

Employment and Labour Relations Court
30 March 2020
2,240 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a union-backed unfair redundancy claim because the union lacked a recognition agreement and the employee had signed a discharge voucher.

What this practically means

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Executive summary

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The Claimant trade union sued the Respondent employer on behalf of the Grievant, Gregory Nzioka Mulwa, an assistant store keeper employed on 27th August 2009, alleging that his termination on grounds of redundancy on 29th February 2016 was procedurally unlawful and unfair contrary to Section 40 of the Employment Act. The Claimant sought notice pay, house allowance arrears, annual leave, severance pay, overtime and compensation. The Respondent denied the claim, asserting the union lacked locus standi for want of a recognition agreement or registered CBA, that the Grievant received notice and his terminal dues of Kshs. 46,070/- under a signed discharge voucher, and that he was a member of NSSF. The Grievant and the Respondent's HR clerk testified. The court distilled three issues: locus standi, the lawfulness of the redundancy, and remedies. It held the union lacked standing because recognition of a trade union under the Labour Relations Act must precede any action on behalf of members, and a membership card alone does not confer jurisdiction. On the redundancy, the court found Section 40 breached: the redundancy letter dated 1st March 2016 took effect from 29th February 2016, so no one month's notice was given and no selection criteria were disclosed. Nonetheless, the Grievant had signed a discharge voucher acknowledging terminal dues and declaring no further claims, and he had pursued the claim through a union without standing. The suit was dismissed with no order as to costs, with execution automatically stayed for 14 days under the COVID-19 practice directions.

Key legal issues

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01

Locus standi of the union to sue on behalf of the grievant

Holding

The Claimant lacked capacity to sue as there was no recognition agreement or registered CBA with the Respondent

Reasoning

Locus standi requires sufficiency of interest. A union membership card alone does not confer standing on the union to sue for an employee. Under the Labour Relations Act, recognition of a trade union must precede any action on behalf of members; absent a recognition agreement or registered CBA, the union could not maintain the suit.

p. 2
02

Procedural fairness of the redundancy

Holding

The redundancy was not in conformity with Section 40 of the Employment Act

Reasoning

Section 40 is mandatory. The redundancy letter was dated 1 March 2016 yet took effect from 29 February 2016, showing the Grievant never received one month's written notice as required by section 40(1)(a) and (b), nor was the Labour Officer notified. No selection criteria under section 40(1)(c) were disclosed to the Grievant.

p. 2
03

Entitlement to remedies

Holding

No remedies awarded; claim dismissed

Reasoning

Despite the procedural defect in the redundancy, the Grievant signed a discharge voucher acknowledging terminal dues of Kshs. 46,070/- and declaring no further claims. Pursuing the claim through a union without locus standi compounded his tenuous position, rendering the claim devoid of merit.

p. 3

Legal principles established

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  • Recognition of a trade union precedes any action it may undertake in respect of its members
  • An employer must demonstrate compliance with the selection criteria under section 40(1)(c) of the Employment Act

Court orders

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  1. 1.Suit dismissed
  2. 2.No order as to costs
  3. 3.Execution of the judgment automatically stayed for 14 days

Authorities

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Legislation

  • Employment ActSection 40(1)(a), (b), (c)
  • Labour Relations ActNot specified
  • Civil Procedure RulesOrder 21 Rule 1 and 3
  • General Wages Order 2015Not specified

Cases cited (4)

  • Communication Workers Union v Safaricom Ltd
    [2014] eKLR
  • David Makori Orare v Glady Bonareri Michira alias Gladys Keengwe Mong’are
    [2019] eKLR
  • Bamburi Special Products Ltd v Remax Construction Limited
    [2018] eKLR
  • Serah Njeri Mwobi v John Kimani Njoroge
    [2013] eKLR
Jurisdiction invoked
Referral certificate for arbitration issued by the conciliator appointed by the Cabinet Secretary Ministry of Labour under the 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 Union of Commercial Food & Allied Workers v Blow Plasts Ltd [2020] KEELRC 1332 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1332/eng@2020-03-30

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