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ELRCDismissedMemorandum of Claim dated 14th February 2018 (Cause)· [2021] KEELRC 2152 (KLR)

Dorcah Nyambeki Nyakundi v Yusuf Ali [2021] KEELRC 2152 (KLR)

Employment and Labour Relations Court
18 February 2021
LNLinnet Ndolo
1,604 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 confirmed that union officials can represent members in court even without a law degree or a recognition agreement.

What this practically means

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Executive summary

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The Claimant, a member of the Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers, filed a Memorandum of Claim in February 2018 seeking compensation for unlawful termination and terminal dues. The Respondent raised a Preliminary Objection on multiple grounds, principally that Hezron Onwong'a, a union Industrial Relations Officer who drafted and signed the pleadings, is not an Advocate within the Advocates Act, that the pleadings offended various procedural rules, and that the union lacked standing because it had no Recognition Agreement with the Respondent. The Court held that Onwong'a's lack of admission as an Advocate was uncontested but immaterial: the true issue was whether a union representative may appear for a member. Section 22 of the Employment and Labour Relations Court Act expressly permits representation by a trade union office bearer or official, a right affirmed by Rika J in the Falcon Tanners case. On recognition, the Court applied its own decision in Modern Soap Factory and the Court of Appeal's affirmance, holding that recognition and representation are distinct roles under the Labour Relations Act, and that a recognition agreement is not the basis for court representation; union membership is a question of fact unsuitable for a preliminary objection. The Court overruled the Preliminary Objection with costs to the Claimant, allowing the underlying claim to proceed to ventilation. Judgment delivered at Mombasa on 18 February 2021 by Linnet Ndolo J.

Key legal issues

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01

Whether a union official may represent a union member in court despite not being an Advocate

Holding

Yes. Section 22 of the Employment and Labour Relations Court Act expressly permits representation by an office bearer or official of the party's trade union.

Reasoning

The Court found it uncontested that Onwong'a was not an Advocate, but held the real issue was whether a union representative may appear for a member. Section 22 of the ELRC Act allows representation by a trade union official. Relying on Rika J in Kenya Shoe & Leather Workers Union v Falcon Tanners, the Court confirmed the right of trade unions, through authorised officers, to represent members in court.

p. 2
02

Whether absence of a Recognition Agreement bars a trade union from instituting proceedings for a member

Holding

No. Recognition and representation are distinct; a recognition agreement is not a precondition to representing members in court.

Reasoning

Relying on its own prior decision in Kenya Shoe & Leather Workers Union v Modern Soap Factory, affirmed by the Court of Appeal, the Court held that Section 45(1) of the Labour Relations Act creates no necessary nexus between recognition and representation. A recognition agreement regulates collective bargaining, not court representation; membership of the union 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; representation and recognition are distinct roles.

Court orders

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  1. 1.The Respondent's Preliminary Objection is overruled with costs to the Claimant

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 5, 6, 14(5), 14(8), 20(1), 25(4)
  • Advocates ActSections 2, 9, 31, 31(1), 34(1)(f)
  • 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(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

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, "Dorcah Nyambeki Nyakundi v Yusuf Ali [2021] KEELRC 2152 (KLR)", Case Analysis (2021). Memorandum of Claim dated 14th February 2018 (Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2152/eng@2021-02-18

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