Kenya Tertiary and Schools Workers Union (Ketaswu) v University Council University of Nairobi; Kudheiha Workers (Interested party) [2021] KEELRC 1979 (KLR)
The bottom line
#A Kenyan court dismissed a trade union's bid for recognition and dues because it couldn't prove workers had properly resigned from their existing union.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the Petitioner union
The Petitioner has locus standi to institute the suits because it recruited members, including the at least 392 employees admitted by the Respondent to have signed its check-off forms, and representation is a constitutional right distinct from recognition.
The Court distinguished representation from recognition: representation flows from membership and is protected under Articles 36 and 41 and Section 4 of the Labour Relations Act, and does not require a simple majority or a recognition agreement. Since the Respondent admitted at least 392 employees signed the Petitioner's check-off forms, and the Petitioner is a registered trade union, it had the right to institute the suits.
Threshold for recognition under Section 54
The Petitioner failed to prove a simple majority for recognition because the alleged resignations from the Interested Party were not proved to have been served on the Respondent, and the Petitioner did not show its Constitution covered the Respondent's employees.
Section 48(5)-(8) governs resignation from a union: the employer may not deduct dues from an employee who has notified it in writing of resignation, and the notice takes effect the following month. The notices of withdrawal produced by the Petitioner bore no stamp indicating service on the Respondent, and the Respondent denied receipt. The Petitioner also failed to produce its Constitution to prove sectoral capacity to recruit. Recognition under Section 54 therefore was not established.
Whether the Petitioner's constitutional rights were violated and remedies available
No violation was established; all substantive prayers failed and the Petition was dismissed with costs, the Court also criticising the use of constitutional petitions for matters adequately covered by statute.
Each prayer was pegged on proof of resignation notices from the 704 employees, which was not proved, and on recognition, which was not established. Section 50 absolves an employer from liability for deductions made in accordance with the Act. The Court further noted the Labour Relations Act provides the procedure for union dues and recognition disputes and condemned the Petitioner to pay costs for unnecessarily dragging the Respondent and Interested Party to court.
Legal principles established
#- A trade union acquires the right to represent an employee by virtue of membership, and does not require a simple majority or a recognition agreement to do so.
- An employer may only stop deduction of union dues upon written notification by the employee, which notice takes effect the month following service.
- A union seeking recognition must prove that its Constitution permits it to recruit the employees of the employer, taking into account the sector in which the employer operates.
- Constitutional petitions must be reserved for matters which are constitutional in nature and cannot be adequately pleaded under other proceedings; statutory disputes do not gain a constitutional pedestal merely because Articles 36 and 41 exist.
Court orders
#- 1.The Petition is dismissed
- 2.The Claim in ELRC Cause No. 25 of 2019 is dismissed
- 3.The Petitioner is condemned to pay costs to both the Respondent and the Interested Party in the Petition
- 4.Costs of the Claim are granted to the Respondent
- Jurisdiction invoked
- Articles 36 and 41 of the Constitution of Kenya, 2010 read with Sections 48, 49, 54, 62 and 74 of the Labour Relations Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Tertiary and Schools Workers Union (Ketaswu) v University Council University of Nairobi; Kudheiha Workers (Interested party) [2021] KEELRC 1979 (KLR)", Case Analysis (2021). Petition of 16th October 2018, consolidated with Employment and Labour Relations Cause Number 25 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1979/eng@2021-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.