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ELRCDismissedIndustrial Cause (claim) filed on behalf of 8 Grievants, arising from Industrial Court Cause No. 21(N) of 2010· [2021] KEELRC 1348 (KLR)

Kenya Union of Journalists v B.B.C Monitoring East Africa Unit [2021] KEELRC 1348 (KLR)

Employment and Labour Relations Court
2 June 2021
NMNzioki wa Makau
1,690 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment and Labour Relations Court ruled that former employees cannot claim benefits from a CBA signed after they left their jobs.

What this practically means

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Executive summary

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The Kenya Union of Journalists sued The B.B.C Monitoring East Africa Unit on behalf of eight former employees (Grievants) claiming non-payment of an 11% salary increment and leave travelling allowance said to be due under Clause 25(b) of a CBA, pursuant to the judgment of O.N. Makau J. in Industrial Cause No. 21(N) of 2010 delivered on 25 October 2012 and a CBA signed on 12 November 2012 and registered on 26 March 2013. The union alleged unfair labour practice under Article 41 of the Constitution and violation of the Labour Relations Act, and sought payment, costs and interest. The Respondent countered that all Grievants left employment in 2011 through resignation, redundancy or settlement, were paid their terminal dues on the terms then in force, and that a CBA signed and registered after their exit cannot benefit them; it also challenged the union's locus standi, particularly regarding Sarah Moller whose case was settled out of court. It distinguished the authorities relied on by the Conciliator (the TSC v Kamau line) and cited Patrick Ouma Owinyo and the Amalgamated Union v General Motors decisions. Nzioki wa Makau J. found that the CBA relied on was signed in 2012, after all departures; the Grievants had been paid on the CBA then in force; and a former employee cannot claim CBA benefits even if its effective date is backdated. The suit was dismissed as misconceived, with costs to the Respondent.

Key legal issues

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01

Entitlement of former employees to CBA benefits signed and registered after their exit

Holding

The claim fails; only employees in employment can benefit from a CBA whose registration post-dates their departure

Reasoning

The court found the CBA the union relies on was signed in 2012 and registered on 26 March 2013, after all 8 Grievants left in 2011 through resignation, redundancy or settlement. All had been paid terminal dues computed on the CBA then in force. Backdating a CBA's effective date does not create rights for persons no longer in employment, distinguishing the Conciliator's reliance on the TSC cases where plaintiffs were still employed at registration.

p. 3
02

Scope of the live claim and locus standi

Holding

Only three Grievants (Charles Bigirimana, Haydee Bangerezako, Jared Obuya) were in substance pursued, and even their claim fails; the union's claim regarding others, including Sarah Moller whose case was settled, was unmerited

Reasoning

Of the 8 Grievants, Sarah Moller's case was settled out of court, four resigned and were paid terminal dues, and the rest received final dues on redundancy or settlement. The court recorded the payment evidence attached by the union, narrowing the claim, before dismissing it entirely as misconceived.

p. 3

Legal principles established

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  • An employee who has left employment before a CBA is signed and registered cannot claim benefits under that CBA even where its effective date is backdated
  • Former employees are not entitled to benefits accruing to employees in employment after their exit

Court orders

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  1. 1.The suit is dismissed with costs to the Respondent

Authorities

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Legislation

  • Labour Relation Act Notice2007 registration of trade unions
  • Labour Relations Act No. 14 of 2007Section 59
  • Labour Relations Act, 2007Section 5(a)
  • Constitution of Kenya 2010Article 41
  • Civil Procedure Rules 2010Order 3 Rule 2(c)

Cases cited (4)

  • Simon P. Kamau v Teachers Service Commission
    [2008] eKLR
  • Teachers' Service Commission v Simon P. Kamau & 19 Others
    [2010] eKLR
  • Patrick Ouma Owinyo v Paper Converters Limited
    [2015] eKLR
  • Amalgamated Union of Kenya Metal Workers v General Motors East Africa Limited
    [2016] eKLR
Jurisdiction invoked
Dispute referred under the Labour Relations Act No. 14 of 2007; the court exercises first-instance employment and labour jurisdiction (Article 41 of the Constitution of Kenya 2010 cited as breached)

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 Journalists v B.B.C Monitoring East Africa Unit [2021] KEELRC 1348 (KLR)", Case Analysis (2021). Industrial Cause (claim) filed on behalf of 8 Grievants, arising from Industrial Court Cause No. 21(N) of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1348/eng@2021-06-02

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