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ELRCDismissedCause No 78 of 2018· [2021] KEELRC 2143 (KLR)

Everlyne Adhiambo Okonga v Maasai Bars and Restaurants Limited [2021] KEELRC 2143 (KLR)

Employment and Labour Relations Court
18 February 2021
LNLINNET NDOLO
1,606 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that trade union officials can represent members in court even without being advocates or having a recognition agreement.

What this practically means

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Executive summary

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The Respondent filed a preliminary objection against a Memorandum of Claim filed by the Claimant union through its Industrial Relations Officer, Hezron Onwong'a, contending that Onwong'a, not being an Advocate of the High Court, was unqualified to draft, file and sign pleadings, and that the union, lacking a Recognition Agreement with the Respondent, had no capacity to sue. The Claimant countered that Section 22 of the Employment and Labour Relations Court Act permits representation by a trade union official, that Article 22(2)(d) allows associations to act for members, and that justice is to be administered without undue regard to procedural technicalities. The court, Linnet Ndolo J, held that the uncontested fact that Onwong'a was not an Advocate was immaterial: the real issue was whether a union representative could represent a member in court. Relying on Section 22 of the Employment and Labour Relations Court Act, the Labour Relations Act, and prior decisions including the Court of Appeal's ruling in Modern Soap Factory v Kenya Shoe and Leather Workers Union, the court found that trade unions and their authorised officers have locus standi to institute and conduct proceedings for members, and that a recognition agreement is not a precondition to representation in court, recognition and representation being distinct roles. The preliminary objection was overruled with costs to the Claimant. The judgment was delivered at Mombasa on 18th February 2021 via Microsoft Teams owing to COVID-19 restrictions.

Key legal issues

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01

Whether a non-advocate union official may represent a union member in court

Holding

Yes. Section 22 of the Employment and Labour Relations Court Act permits a party to be represented by an office bearer or official of the party's trade union; the fact that Onwong'a is not an Advocate is immaterial.

Reasoning

The court held that the issue was not whether Onwong'a was a qualified Advocate, which was uncontested, but whether a union representative may represent a member in court. Section 22 of the Employment and Labour Relations Court Act expressly allows representation by an office bearer or official of the party's trade union, and the Labour Relations Act secures trade unions' power to represent members' interests. Relying on Rika J in Kenya Shoe & Leather Workers Union v Falcon Tanners Ltd, the court found no legal obscurity in this right of representation.

p. 2
02

Whether absence of a Recognition Agreement bars a trade union from suing for its members

Holding

No. There is no necessary nexus between recognition and representation; the two roles are distinct.

Reasoning

The court followed its own decision in Kenya Shoe & Leather Workers Union v Modern Soap Factory and the Court of Appeal's decision in Modern Soap Factory v Kenya Shoe and Leather Workers Union, which held that a trade union has many roles besides collective bargaining premised on recognition, and that representation in court does not depend on a recognition agreement. Whether an employee is a union member is a question of fact not amenable to determination on a preliminary objection.

p. 3

Legal principles established

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  • Trade unions and their authorised officers have locus standi to take out proceedings and appear in court on behalf of union members.
  • A recognition agreement is not the basis upon which a trade union represents its members in court.

Court orders

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  1. 1.The Respondent's Preliminary Objection is overruled
  2. 2.Costs of the Preliminary Objection awarded to the Claimant

Authorities

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Legislation

  • Advocates ActSections 2, 9, 31, 31(1), 34(1)(f)
  • Employment and Labour Relations Court RulesRules 6, 14(5), 14(8)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 5, 25(4)
  • Civil Procedure Rules, 2010Order 2 Rule 16, Order 9 Rule 2
  • Labour Relations ActSections 2, 2(e), 45(1), 54(3)
  • Employment and Labour Relations Court ActSections 12, 12(3)(viii), 22
  • Constitution of Kenya, 2010Articles 22(2)(d), 41, 159(2)(d), 258(2)(d)

Cases cited (3)

  • Kenya Shoe & Leather Workers Union v Falcon Tanners Ltd
    Cause No 826 of 2012
  • Kenya Shoe & Leather Workers Union v Modern Soap Factory
    [2018] eKLR
  • Modern Soap Factory v Kenya Shoe and Leather Workers Union
    Civil Appeal No 37 of 2019
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act; claim brought under Rule 5 of the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Everlyne Adhiambo Okonga v Maasai Bars and Restaurants Limited [2021] KEELRC 2143 (KLR)", Case Analysis (2021). Cause No 78 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2143/eng@2021-02-18

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