Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCAllowedELRC Cause (statement of claim dated 9th August 2019, Nairobi)· [2021] KEELRC 198 (KLR)

Kepher Oguwi Langi v Kenya Union of Post Primary Education Teachers (KUPPET) & 3 others [2021] KEELRC 198 (KLR)

Employment and Labour Relations Court
10 December 2021
3,625 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court cancelled a deal that forced teachers' union dues from workers who had already quit, and ordered refunds.

What this practically means

#

Executive summary

#
The Claimant, a trainer formerly employed by the Teachers Service Commission and transferred by operation of the Technical and Vocational Education and Training Act to the Ministry of Education, sued to challenge a consent order recorded on 15th July 2019 in consolidated ELRC Petitions No. 85 and 97 of 2018. Under the consent, the employer was to recover and remit union dues and agency fees to KUPPET and to enter a Recognition Agreement with it. The Claimant had resigned from KUPPET, was never a party to the consent, and had been refused joinder to the consolidated petitions, prompting this suit. None of the Respondents filed a defence; only the 1st and 3rd Respondents filed submissions. KUPPET argued the Claimant lacked standing to set aside the consent, relying on authorities that a consent order binds unless obtained by fraud or collusion, and cited material non-disclosure. The court held that the consent covered matters completely outside the judgment it purported to implement and offended Articles 36 and 41 of the Constitution and Sections 4, 48, 49 and 54 of the Labour Relations Act and Section 19 of the Employment Act. It declared the consent unlawful, null and void and set it aside; declared that no employer may deduct union dues without a duly signed Form S; restrained further deductions from the Claimant and those he represents; ordered the 2nd and 3rd Respondents to each refund monies deducted after the employees left the 3rd Respondent's employment; and awarded the Claimant costs of Kshs.30,000/- against the 1st Respondent. Judgment delivered at Nairobi on 10th December 2021 by Maureen Onyango, J.

Key legal issues

#
01

Validity of the consent order of 15th July 2019

Holding

The consent order was unlawful, null and void and was set aside because it went outside the judgment it purported to implement and violated the Claimant's rights under Articles 36 and 41 of the Constitution

Reasoning

The court found that the parties to the consolidated petitions had agreed in the consent to matters completely outside the judgment delivered on 1st March 2019, including mandatory recovery and remittance of union dues and agency fees and a Recognition Agreement with KUPPET. The consent thereby offended the employees' freedom of association under Articles 36 and 41, the right to join and leave a union under Section 4(1) of the Labour Relations Act, and the check-off and recognition provisions in Sections 48 and 54 of that Act.

p. 5
02

Lawfulness of deduction of union dues and agency fees

Holding

Deductions of union dues without a signed Form S and of agency fees absent a collective agreement or court order under Section 49 of the Labour Relations Act were unlawful and recoverable from the 2nd Respondent

Reasoning

The Claimant and those he represents had resigned from KUPPET or transferred out of TSC employment and had not authorised deductions. Section 48 of the Labour Relations Act requires a signed Form S before deduction of union dues. Section 49 permits agency fees only where there is a collective agreement and a court order, neither of which existed. Section 19(1) of the Employment Act forbids unauthorised deductions from wages. The deductions therefore violated Section 19(1) and were recoverable.

p. 5
03

Whether the 3rd Respondent (Public Service Commission/TSC) is a necessary party

Holding

The court did not discharge the 3rd Respondent; it instead directed the 2nd and 3rd Respondents to each refund monies deducted

Reasoning

The 3rd Respondent submitted that the Claimant had raised no justifiable issue against it and that it was not a necessary party, relying on DT Dobie & Co (K) Ltd v Muchina and Lucy Nungari Ngigi & 128 Others v National Bank of Kenya Limited. The court did not adopt the submission; since trainers had been transferred out of the 3rd Respondent's employment, the final orders required the 2nd and 3rd Respondents to each refund monies deducted and remitted to KUPPET after the employees left the 3rd Respondent's employment.

p. 5

Legal principles established

#
  • A consent order that goes outside the judgment it purports to implement and violates employees' constitutional rights of association cannot stand
  • No employer may deduct union dues without a duly signed Form S check-off form; deductions without employee authority under Section 19 of the Employment Act are unlawful and recoverable

Court orders

#
  1. 1.A declaration that the consent order entered between the Respondents and recorded as an order of the Court on 15th July, 2019 in Petition No. 85 of 2018 as consolidated with Petition No. 97 of 2018 is unlawful, null and void
  2. 2.A declaration that no employer can effect any deductions of union dues unless the Form 'S' duly signed by employee(s) has been received from the said trade union and validation as to its validity is ascertained
  3. 3.The consent dated 15th July 2019 is set aside as it violates the rights of the Claimant and the persons on whose behalf he filed the claim to freedom of association and fair labour practice under Articles 36 and 41 of the Constitution, Section 19 of the Employment Act and Sections 4, 48, 49 and 54 of the Labour Relations Act
  4. 4.The Respondents to stop forthwith the deduction of union dues from the salary of the Claimant and the persons on whose behalf he filed the claim as set out in the list attached to the claim
  5. 5.The 2nd and 3rd Respondents to each refund any monies deducted from the salaries of the Claimant and the persons on whose behalf he filed the suit and remitted to the 1st Respondent on account of union dues or agency fees after the date they ceased to be employees of the 3rd Respondent
  6. 6.The 1st Respondent to pay costs to the Claimant assessed at Kshs.30,000/- to cover reasonable expenses and disbursements incurred in respect of the proceedings

Authorities

#

Legislation

  • Constitution of KenyaArticles 22(1), 36, 41, 47, 48, 159(2)(d), 232, 237(2)
  • Labour Relations ActSections 4(1), 48, 49, 54
  • Employment ActSection 19(1)
  • Technical and Vocational Education and Training ActNo. 29 of 2013
  • Civil Procedure ActSections 1A, 1B, 6; Order 1; Order 2 Rule 15; Order 6 Rule 13(1); Order 21 Rule 1
  • Civil Procedure RulesOrder 1, Order 2 Rule 15, Order 6 Rule 13(1), Order 21 Rule 1

Cases cited (5)

  • S M N v Z M S & 3 others
    [2017] eKLR
  • Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd
    [1982] KLR 485
  • Barclays Bank of Kenya Ltd v Elizabeth Aqidza & 2 Others
    [2012] eKLR
  • DT Dobie & Co (K) Ltd v Muchina
    [1982] KLR
  • Lucy Nungari Ngigi & 128 Others v National Bank of Kenya Limited & Another
    [2015] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Constitution (Articles 22, 41, 47, 232, 237 cited) and the Employment Act and Labour Relations Act; not expressly stated as a single provision

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kepher Oguwi Langi v Kenya Union of Post Primary Education Teachers (KUPPET) & 3 others [2021] KEELRC 198 (KLR)", Case Analysis (2021). ELRC Cause (statement of claim dated 9th August 2019, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/198/eng@2021-12-10

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