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ELRCPartially AllowedNot stated in the judgment (application dated 10th March 2021)· [2021] KEELRC 1203 (KLR)

Kenya Tertiary & School Workers Union (KETASWU) v Karatina University; Kenya Union of Domestic Workers, Eductional Institutions and Allied Workers (KUDHEIHA) (Proposed 2nd Respondent) [2021] KEELRC 1203 (KLR)

Employment and Labour Relations Court
19 July 2021
DMD.K. NJAGI MARETE
1,439 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court allowed a union into a rights case, but only as an Interested Party, not a Respondent.

What this practically means

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Executive summary

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By an application dated 10th March 2021, KUDHEIHA sought leave to be joined as the 2nd Respondent in a fundamental rights suit between a Claimant union and a university Respondent, on the basis of its standing collective bargaining agreement with the university and its recruitment of the university's workers. The Claimant opposed, arguing freedom of association under ILO Convention No.87, Articles 36 and 41 of the Constitution and the Labour Relations Act, and asserting that KUDHEIHA lacked locus standi and was an unregistered 'unknown organisation'. The university Respondent also opposed, explaining that deductions to KUDHEIHA in January 2021 were agency fees under section 49(5) of the Labour Relations Act for members who had resigned, distinguishing 'Kudheiha 1' (remaining members) from 'Kudheiha 2' (agency-fee payers). In submissions, KUDHEIHA claimed admission-based joinder and a quantifiable interest; the Claimant argued that under the 2013 Rules a 'Respondent' must be a person alleged to have violated rights, and that KUDHEIHA should at most have sought interested-party status. The court held that the right to be heard is a fundamental constitutional right and that KUDHEIHA's stake was clear and substantial, necessitating joinder so all stakeholders participate. It allowed the application in a varied form, enjoining KUDHEIHA as an Interested Party, with each party bearing their own costs. Judgment was delivered at Nyeri on 19th July 2021 by D.K.Njagi Marete, Judge.

Key legal issues

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01

Joinder of a party with an identifiable stake in a rights suit

Holding

The court allowed KUDHEIHA to be joined, but as an Interested Party rather than as 2nd Respondent, given its identifiable stake in the CBA and union dues dispute.

Reasoning

The court found that KUDHEIHA had a clear, quantifiable interest: it had negotiated the CBA for the Respondent's grade 1-4 staff, collected union dues and agency fees, and its involvement was necessary to resolve the dispute durably. It framed the joinder as rooted in the fundamental right to be heard and the essence of joining all stakeholders. However, it accepted the Claimant's submission that under the 2013 Rules a 'Respondent' is one alleged to have violated rights, which KUDHEIHA was not; hence the varied form of joinder as Interested Party.

p. 3
02

Distinction between a Respondent and an Interested Party under the 2013 Rules

Holding

A proper Respondent is a person alleged to have denied, violated or infringed a right; KUDHEIHA did not fit that description, so joinder as Interested Party was the appropriate vehicle.

Reasoning

The Claimant's submissions drew on the definitions in the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, contrasting the definition of a Respondent with that of an Interested Party. The court evidently accepted the force of this distinction, varying the joinder accordingly, while still allowing the applicant participation because of its stake and the constitutional right to be heard.

p. 2

Legal principles established

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  • The right to be heard is a fundamental right and freedom under the Constitution
  • A party with an identifiable stake in proceedings should be joined so that all stakeholders participate in resolving the dispute

Court orders

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  1. 1.The application for joinder is allowed in a varied form: KUDHEIHA is enjoined as an Interested Party to the suit rather than as 2nd Respondent
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 36 and 41
  • Labour Relations Act, No.14 of 2007Section 4(1) and 5; Section 49(5)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 5(d) Part II; definitions of 'Respondent' and 'Interested Party'
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 ( Mutunga Rules) within the court's jurisdiction over the fundamental rights suit

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 Tertiary & School Workers Union (KETASWU) v Karatina University; Kenya Union of Domestic Workers, Eductional Institutions and Allied Workers (KUDHEIHA) (Proposed 2nd Respondent) [2021] KEELRC 1203 (KLR)", Case Analysis (2021). Not stated in the judgment (application dated 10th March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1203/eng@2021-07-19

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