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ELRCStruck OutELRC Cause (Nairobi), application dated 15/7/2019 (number not stated in judgment)· [2021] KEELRC 2060 (KLR)

Kenya Union of Sugar Plantation and Allied Workers v West Kenya Sugar Company Limited [2021] KEELRC 2060 (KLR)

Employment and Labour Relations Court
4 March 2021
MNMathews N. Nduma
1,103 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 Court struck out a union's repeat lawsuit against Mumias Sugar because the same dispute had already been decided in 2016.

What this practically means

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Executive summary

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The claimant union, Kenya Union of Sugar Plantation and Allied Workers, filed a suit together with an application dated 15 July 2019 seeking, at interlocutory stage, an order restraining the respondent, Mumias Sugar Company, from threatening, harassing, victimising, terminating or dismissing listed employees on account of joining the union or participating in the litigation. The application was premised on the respondent's refusal to effect check-off union dues and alleged interference with union membership. The respondent raised a preliminary objection that the suit was res judicata, being substantially identical to Kisumu ELRC Cause No. 19 of 2013 between the same parties, which Maureen Onyango J. heard and dismissed by judgment dated 15 September 2016. In that judgment the court held the union had no omnibus right to represent all management staff, and indicated that management staff could only be unionised category by category through mutual amendment of the Recognition Agreement or a collective bargaining agreement. Nduma J. compared the pleadings in the present suit with the earlier judgment and found the same issues and parties, no new issues, and no review or appeal having been pursued by the union. The court also noted the prayer sought was final in nature and incapable of grant interlocutorily. The preliminary objection was upheld, the suit declared res judicata, and the entire suit struck out on 4 March 2021, with the ruling delivered online under COVID-19 directions.

Key legal issues

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01

Res judicata

Holding

The present suit raises the same issues and involves the same parties as Kisumu ELRC Cause No. 19 of 2013, which was heard and dismissed by Maureen Onyango J.; the suit is res judicata and is struck out

Reasoning

The court compared the pleadings in the Memorandum of Claim dated 15/7/2019 with the earlier judgment and found no new issues. The earlier suit concerned the refusal to include management staff as union members, and the earlier court gave guidelines requiring amendment of the Recognition Agreement or a CBA before management staff could be unionised. The claimant neither sought review nor appealed, and the defence of res judicata was satisfied.

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02

Unionisation of management staff

Holding

Management staff can only be brought into the union by mutual amendment of the Recognition Agreement or through a collective bargaining agreement, category by category

Reasoning

The earlier judgment by Maureen Onyango J., which the court read, held that although most management grades are excluded by Appendix C to the Industrial Relations Charter, some grades may be agreed to be unionisable, and that the claimant could not claim an omnibus right to represent all management staff without exception. The parties had not mutually amended the Recognition Agreement to bring management staff into the union's purview.

p. 1

Legal principles established

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  • Res judicata bars a subsequent suit on the same matter between the same parties after a judgment has been delivered, and it serves to assure an efficient judicial system and bring finality to litigation
  • A party aggrieved by a judgment must seek review or appeal; a fresh suit on the same issues is res judicata

Court orders

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  1. 1.The Preliminary Objection by the respondent is upheld and the suit is held to be res judicata
  2. 2.The entire suit is struck out

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 18
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (1)

  • Kenya Union of Sugar Plantation and Allied Workers v Mumias Sugar Company
    Kisumu Employment & Labour Relations Court No. 19 of 2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (not expressly quoted in judgment)

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 Sugar Plantation and Allied Workers v West Kenya Sugar Company Limited [2021] KEELRC 2060 (KLR)", Case Analysis (2021). ELRC Cause (Nairobi), application dated 15/7/2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2060/eng@2021-03-04

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