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ELRCDismissedEmployment and Labour Relations Court Claim (application dated 18th November 2021)· [2022] KEELRC 1092 (KLR)

Kenya Hotels and Allied Workers Union & 22 others v Kentmere (1986) Limited t/a The Kentmere Club (Cause 1588 of 2015) [2022] KEELRC 1092 (KLR)

Employment and Labour Relations Court
6 May 2022
3,047 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Employment and Labour Relations Court blocked former hotel workers from joining a concluded union case, ruling a union controls who represents it and beneficiaries can't hijack settled awards.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Maureen Onyango J on 6th May 2022, determines a notice of motion dated 18th November 2021 filed by grievants - former workers of Kentmere - represented by Francis Muthondu, Chairman of the Works Committee. They sought leave for the firm of Akolo Wanyanga & Company Advocates to come on record, their joinder as parties, a stay of payment of the mediation settlement, and an order that the agreed sum be paid to the new firm, alleging loss of confidence in the Claimant Union and reports that it does not pay grievants sums awarded. The Union opposed, arguing the firm was never validly engaged, a consent was irregularly entered by a former officer, John Simiyu, and that after the mediation agreement was adopted as an order of the court on 15th November 2021 the court became functus officio; it also questioned the deponent's authority. Framing two issues - leave to come on record and joinder - the court held that counsel cannot come on record for non-parties and that a claimant cannot be compelled to engage counsel without its consent. On joinder under Order 1 Rule 10(2), the court found the applicants had not demonstrated that joinder was necessary for complete adjudication, since judgment had been entered and only disbursement of the decretal sum remained; allegations of non-payment rested on an advocate's letter, which was hardly evidence. The application was accordingly dismissed with costs.

Key legal issues

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01

Whether advocates may come on record for non-parties (grievants) after judgment

Holding

Leave refused; grievants are beneficiaries of the judgment, not parties, and the Union's board passed no resolution engaging the firm

Reasoning

The court held that only the claimant union, as party, can engage counsel, and that a claimant cannot be compelled to engage counsel without its consent. Since judgment had been entered by adoption of the mediation settlement on 15th November 2021, no change of advocates could be effected without a court order, and none was justified.

p. 6
02

Whether the grievants should be joined as parties

Holding

Joinder refused; not necessary for effective and complete adjudication as only disbursement of the decretal sum remains

Reasoning

Applying Order 1 Rule 10(2), the court found the applicants had not shown joinder was necessary. Judgment had been entered for the union for the benefit of the grievants; the only remaining step was release of the decretal sum, and the applicants had not shown the union could not distribute it, nor proved allegations of non-payment.

p. 7
03

Authorization to swear affidavits and act for others

Holding

Claimant argued an assertion of authority in an affidavit is insufficient, citing Abdulla Abshir; the court did not adopt this as decisive

Reasoning

The Claimant contended that the letter of authority referred to by Francis Muthondu was irregular under Order 1 Rule 13, relying on the Abdulla Abshir authority that written, filed authority is required. The court's dismissal rested instead on the joinder and representation grounds.

p. 5

Legal principles established

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  • A claimant cannot be compelled to engage counsel without its consent, and counsel cannot come on record for a non-party
  • Joinder under Order 1 Rule 10(2) requires demonstration that the proposed party's presence is necessary for complete adjudication; it is not available where proceedings are concluded
  • Allegations of non-payment of monies require substantive proof, not merely a letter from an advocate

Court orders

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  1. 1.The application dated 18th November 2021 is dismissed
  2. 2.Costs of the application awarded to the Claimant

Authorities

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Legislation

  • Constitution of KenyaArticle 22(1) and (2)
  • Constitution of KenyaArticle 22(2)
  • Constitution of KenyaArticle 21
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 159(2)
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Labour Relations ActSection 4
  • Labour Relations ActSection 62
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure ActOrder 1 Rule 13
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (12)

  • Francis Munyoki Kilonzo & Another v. Vincent Mutua Mutiso
    [2013] eKLR
  • Telkom Kenya Limited v John Ochanda (suing on his own behalf and on behalf of 996 Former Employees of Telkom Kenya Limited)
    [2014] eKLR
  • In Re Estate of Kinuthia Mahuti (Deceased)
    [2018] eKLR
  • Jersey Evening Post Limited v Al Thani
    (2002) JLR 542 at 550
  • Raila Odinga & 2 Others v Independent Electoral and Boundaries Commission & 3 Others
    [2013] eKLR
  • JMK v MWW & Another
    [2015] eKLR
  • Central Kenya Ltd. v. Trust Bank & 4 Others
    CA No. 222 of 1998
  • Tang Gas Distributors Ltd V. Said & Others
    [2014] EA 448
  • Kenya Hotels and Allied Workers Union v Well-Come Inn Hotels T/A Malindi Investments Ltd & Another
    [2015] eKLR
  • Kenya Hotels and Allied Workers Union & another v Mayfair Holdings Ltd (Imperial Hotel)
    Case No. Kisumu ELRC 35 of 2019
  • Abdulla Abshir & 38 others v Yasmin Farah Mohamed
    [2015] eKLR
  • Communications Commission of Kenya & 3 others v Royal Media Services Limited & 7 others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over a labour dispute referred under Section 62 of the Labour Relations Act after failed conciliation

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 Hotels and Allied Workers Union & 22 others v Kentmere (1986) Limited t/a The Kentmere Club (Cause 1588 of 2015) [2022] KEELRC 1092 (KLR)", Case Analysis (2022). Employment and Labour Relations Court Claim (application dated 18th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1092/eng@2022-05-06

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