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ELRCDismissedNot stated in the judgment as provided· [2020] KEELRC 1559 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Martin Njeru Mwea [2020] KEELRC 1559 (KLR)

Employment and Labour Relations Court
25 February 2020
NMNzioki wa Makau
2,197 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's unfair termination suit because it had no standing to sue, denying a worker's Kshs 4.9 million claim.

What this practically means

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Executive summary

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The Claimant Union sued the Respondent on behalf of the Grievant, John Ndwiga Gasee, alleging wrongful verbal termination on 12th June 2016 after 11 years of employment as a driver of lorry KAR 233M, and claiming reinstatement or, alternatively, terminal dues totalling Kshs. 4,963,755.55 including notice, accrued leave, rest days, overtime, public holidays, service gratuity, underpayment and compensation for unlawful termination. The Respondent denied ever employing the Grievant, denied knowledge of the Claimant Union, asserted he had sold the lorry to his son in 2004 or 2005, and contended he was wrongly enjoined, at one point indicating a misjoinder objection. The Grievant testified that he was told a new driver had been employed and his June salary was sent via M-pesa; the Respondent denied sending money or employing a driver called Njagi. The Respondent argued in submissions that the Union lacked locus standi absent a recognition agreement or proof of the Grievant's membership, relying on Communication Workers Union v Safaricom Ltd, and that no employment relationship had been proved, citing the Evidence Act section 107(1) and the dictum that submissions cannot take the place of evidence. The court held that apart from interposing when terminal benefits were pursued, there was no prior engagement between the Union and the Respondent, no recognition agreement and no evidence of membership, so the Union had assumed the role of an advocate contrary to the Labour Institutions Act and Labour Relations Act. Following the Safaricom decision, the court found no standing and dismissed the suit. Because the Respondent waited for a full hearing instead of raising the objection in limine, each party was ordered to bear its own costs.

Key legal issues

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01

Locus standi of the Claimant Union to sue on behalf of the Grievant

Holding

The Claimant Union lacked standing; the suit was dismissed

Reasoning

Other than interposing at the time of pursuing terminal benefits, there was no evidence of prior engagement between the Union and the Respondent, no recognition agreement and no proof that the Grievant was a member. The Union therefore assumed the role of an advocate, which is not supported by the Labour Institutions Act and the Labour Relations Act, and following Communication Workers Union v Safaricom Ltd there was no standing to articulate the case.

p. 3
02

Whether an employment relationship existed between the Grievant and the Respondent

Holding

The court did not make a definitive finding on the employment relationship, dismissing the suit on the threshold question of standing

Reasoning

The Grievant testified he drove the Respondent's lorry and was paid via M-pesa, while the Respondent denied knowing him and claimed he had sold the lorry to his son. However, the court disposed of the matter on the Union's want of locus standi and did not resolve the evidential dispute on the employment relationship itself.

p. 3

Legal principles established

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  • A trade union may not assume the role of advocate for a grievant absent a recognition agreement or evidence of membership; the law prescribes the mode of interaction between a union and other social partners
  • A party who waits for a full hearing instead of raising a locus standi objection in limine forfeits costs even where the suit fails for want of standing

Court orders

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  1. 1.Suit dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Evidence ActSection 107(1)
  • Labour Institutions ActNot specified
  • Labour Relations ActNot specified

Cases cited (3)

  • Communication Workers Union v Safaricom Ltd
    [2014] eKLR
  • Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Zipporah Kemunto Onsombi v Kisii Prestige Shuttle Limited
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Institutions Act and Labour Relations Act (not expressly cited with a constitutional article in the judgment)

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 and Allied Workers v Martin Njeru Mwea [2020] KEELRC 1559 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1559/eng@2020-02-25

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