Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedELRC Cause (Nairobi) – claim and applications dated 19th February 2020 and 28th February 2020· [2021] KEELRC 1900 (KLR)

Kenya Union of Commercial Food and Allied Workers Union v London Distillers (K) Limited; Central Organisation of Trade Unions Kenya (Interested Party) [2021] KEELRC 1900 (KLR)

Employment and Labour Relations Court
9 April 2021
MOMAUREEN ONYANGO
6,589 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ordered London Distillers to resume deducting and remitting union dues, ruling that an employer cannot refuse once employees sign check-off forms.

What this practically means

#

Executive summary

#
In this ruling, the Employment and Labour Relations Court at Nairobi (Maureen Onyango, J) dealt with two applications arising from a claim by the Kenya Union of Commercial, Food and Allied Workers against London Distillers (K) Limited over refusal to deduct and remit union dues. The Respondent's application dated 28th February 2020 sought a stay of proceedings pending Nairobi Constitutional Petition No. 326 of 2019 and Court of Appeal appeals Nos. 362 and 387 of 2019, and in the alternative striking out of the suit as sub judice and an abuse of process. The court held that sub judice turns on the substance of the pleadings; comparing the issues across at least 11 pending suits, it found the issue of union dues deduction was not directly and substantially in issue in any other suit, and a concluded suit cannot be sub judice. The abuse-of-process plea failed because the suits cited concerned different subject matters, and parties are bound by their pleadings. On the Claimant's application dated 19th February 2020 seeking orders for deduction and remittance of union dues and protection of union members, the court rejected the Respondent's argument that only non-unionisable domestic employees of directors were affected. Payslips of three factory employees showed dues deducted in December 2019 but stopped in January 2020. The court held Section 48(3) of the Labour Relations Act is mandatory and, with Section 19 of the Employment Act, obliges the employer to deduct dues once check-off forms are signed. The Respondent's application was dismissed; the Claimant's application was allowed with interim orders compelling deduction and remittance of dues monthly and restraining victimisation of union members. The Respondent was granted 14 days to file its defence, with costs of the applications in the cause.

Key legal issues

#
01

Whether the suit is sub judice given the multiplicity of suits between the parties

Holding

The suit is not sub judice because the issues in the pending suits and appeals are different from the issue of refusal to deduct and remit union dues

Reasoning

The court examined the issues in the 11 pending suits and appeals. Cause 120 of 2019 concerns forced union membership withdrawal and lock-out; Petition 326 of 2019 seeks termination of the recognition agreement; other causes concern terminations and terminal benefits. The instant suit's issue is refusal to deduct and remit union dues, which is not directly and substantially in issue in any previously instituted suit. A concluded suit cannot be sub judice.

p. 6
02

Whether the proceedings are an abuse of court process

Holding

No abuse of process; the suits cited are on different subject matters and matters not pleaded cannot be relied on

Reasoning

The court accepted the Satya Bhama Gandhi formulation of abuse of process but found the multiplicity alleged did not amount to duplication, since all suits concerned different subject matters. The Respondent also relied on matters not set out in its application, and parties are bound by their pleadings.

p. 7
03

Whether the Respondent is obliged to deduct and remit union dues

Holding

Yes; under Section 48 of the Labour Relations Act and Section 19 of the Employment Act, deductions are authorised and mandatory once check-off forms are signed

Reasoning

The payslips of three employees (Lillian Amindo Nasibi, Anna Kamanthe Kivuva and Ramona Mmbwange) showed union and COTU deductions in December 2019 but none in January 2020, proving cessation of deductions for actual employees of the Respondent. Section 48(3) is mandatory and the employer cannot refuse to deduct once Form S is signed; Section 19(1)(f) and (g) of the Employment Act also authorise such deductions.

p. 10

Legal principles established

#
  • Sub judice under Section 6 of the Civil Procedure Act is determined by the substance of the suits and their pleadings, not the form in which a suit is framed
  • Section 48(3) of the Labour Relations Act is mandatory: once an employee signs the check-off Form S, the employer has no ability to refuse to deduct union dues
  • Parties are bound by their pleadings and may not litigate matters outside them

Court orders

#
  1. 1.The Respondent's application dated 28th February 2020 seeking stay of proceedings and striking out is dismissed
  2. 2.Pending hearing and determination of the matter, the Respondent is ordered to deduct and remit union dues from their employees who are union members for the month of February 2020 and to continue doing so on monthly basis
  3. 3.Pending hearing and determination of the matter, the Respondent is restrained from victimizing, coercing, terminating or disciplining union members whose payslips are before the court on account of their union membership
  4. 4.The Respondent, having not filed a defence, is granted 14 days to file the same; a date to be given for mention for pre-trial directions
  5. 5.Costs of the applications shall be in the cause

Authorities

#

Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 17
  • Employment and Labour Relations Court ActSections 12, 20(1)
  • Constitution of Kenya, 2010Articles 159(2), 159(2)(d), 29(a),(d) & (f), 31(a),(c) & (d), 40, 43, 48
  • Labour Relations ActSections 2, 32, 48, 49, 59(1), 76
  • Civil Procedure ActSections 1B, 6
  • Employment ActSection 19(1)(f) and (g)
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (4)

  • Thika Min Hydro Co. Ltd v Josphat Karu Ndwiga
    (2013) eKLR
  • Satya Bhama Gandhi v Director of Public Prosecutions & 3 Others
    [2018] eKLR
  • Kenya Chemical and Allied Workers' Union v Bamburi Cement Limited
    [2017] eKLR
  • Said Ndege v Steel Makers Ltd
    [2014] eKLR
Jurisdiction invoked
Sections 12 and 20(1) of the Employment and Labour Relations Court Act; Rule 17 of the Employment and Labour Relations Court (Procedure) Rules 2016; Article 159(2) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Union of Commercial Food and Allied Workers Union v London Distillers (K) Limited; Central Organisation of Trade Unions Kenya (Interested Party) [2021] KEELRC 1900 (KLR)", Case Analysis (2021). ELRC Cause (Nairobi) – claim and applications dated 19th February 2020 and 28th February 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1900/eng@2021-04-09

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