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ELRCStruck OutNot stated in extract· [2021] KEELRC 1533 (KLR)

Phitalis Otere Osangir & 111 others v Kenya Engineering Workers Union [2021] KEELRC 1533 (KLR)

Employment and Labour Relations Court
20 April 2021
NMNzioki wa Makau
714 words in judgment
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The bottom line

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Kenya's Employment Court struck out a claim because workers sued their trade union for employment remedies, but a union is not legally their employer.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Nzioki wa Makau J on 20 April 2021, determined a preliminary objection asserting that the Claimants' claim offended Section 90 of the Employment Act, 2007 on limitation of time and ought to be struck out. The Claimants, former employees of Devki Steel Mills Limited and members of the Respondent trade union, opposed the objection, arguing that their negligence claim was filed within the three-year period under Section 4 of the Limitation of Actions Act, that the last cause of action arose on 20 December 2017 with suit filed on 18 June 2019, and that Section 90 did not apply because there was no employer-employee dispute between them and the Respondent union. They relied on Gibb Africa Limited v David Kiplagat Rotich and Daniel Kipkoech Kenduiywo v County Government of Uasin Gishu. The Respondent's submissions were not on file. The court held that neither the Employment Act nor the Labour Relations Act was crafted to place a union in the position of an employer, and that while employment remedies were claimed, a suit seeking such remedies from the union was not the proper recourse. The court struck out the entire suit as devoid of merit and ordered each party to bear their own costs.

Key legal issues

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01

Applicability of Section 90 of the Employment Act to claims against a trade union

Holding

Section 90 does not apply where there is no employer-employee relationship between the claimants and the respondent union; however, the claim as framed was misconceived and was struck out.

Reasoning

The court accepted that the Employment Act defines rights of employees and the Labour Relations Act governs trade unions and disputes, but held that neither statute casts a union in the role of an employer. Since the claimants sought employment remedies from the union, the claim was improperly framed and could not stand, notwithstanding the claimants' negligence arguments based on a statutory duty of care.

p. 2

Legal principles established

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  • Neither the Employment Act nor the Labour Relations Act places a trade union in the position of an employer vis-à-vis its members; employment remedies cannot be sought from a union.

Court orders

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  1. 1.The suit is struck out as devoid of merit
  2. 2.Each party to bear their own costs for the suit

Authorities

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Legislation

  • Employment ActSection 90; Section 3
  • Limitation of Actions ActSection 4
  • Labour Relations ActLong title (as described)
  • Constitution of Kenya2010 (general reference)
  • Employment and Labour Relations Court ActNot specified

Cases cited (2)

  • Gibb Africa Limited v David Kiplagat Rotich
    [2019] eKLR
  • Daniel Kipkoech Kenduiywo v County Government of Uasin Gishu
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act; Constitution of Kenya 2010

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, "Phitalis Otere Osangir & 111 others v Kenya Engineering Workers Union [2021] KEELRC 1533 (KLR)", Case Analysis (2021). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1533/eng@2021-04-20

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