Kepher Oguwi Langi v Kenya Union of Post Primary Education Teachers (KUPPET) & 3 others [2021] KEELRC 198 (KLR)
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
#Key legal issues
#Validity of the consent order of 15th July 2019
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
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.
Lawfulness of deduction of union dues and agency fees
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
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.
Whether the 3rd Respondent (Public Service Commission/TSC) is a necessary party
The court did not discharge the 3rd Respondent; it instead directed the 2nd and 3rd Respondents to each refund monies deducted
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.
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.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.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.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.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.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.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
- 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.