Kenya Hotels and Allied Workers Union v Mada Holdings T/A Baobab Sea Lodge/Kilifi Bay (Cause 2 of 2021) [2022] KEELRC 1515 (KLR)
The bottom line
#Kenya's Employment Court confirmed employees can take over a lawsuit from their union and leave union representation whenever they choose.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction to substitute a nominal party as principal claimant despite the silence of rule 14(6) of the ELRC (Procedure) Rules, 2016
The court has jurisdiction under section 12 of the ELRC Act to order substitution of parties
Rule 14(6) does not address substitution of parties, but section 12 of the ELRC Act confers wide jurisdiction to issue orders necessary to meet the ends of justice. The court held that this power encompasses orders for substitution of parties, and relied on the Court of Appeal authority in Kenya Trypanosomiasis Research Institute v Anthony Kabimba Gusinjilu to hold that a nominal party may apply to become the principal litigant.
Whether the applicants' right under Article 41 of the Constitution entitles them to take over conduct of the claim from their union
Forcing the applicants to remain represented by the union would infringe their Article 41 right to join or leave a trade union at will
The court held that Article 41 of the Constitution as read with section 4 of the Labour Relations Act protects the right of employees to join or leave a trade union at will. Compelling the applicants to continue being represented by the claimant Union would infringe that right, so the substitution prayer had to be granted notwithstanding the respondent's plea of acquiescence.
Whether the respondent should be re-described to correctly set out its corporate name
Leave to re-describe the respondent was readily granted to ensure the correct parties are bound by the decision
The court held that accurately setting out a party's name is critical so that only the correct parties are bound by the court's decision. It relied on the Mapendo International v Metra Investment Ltd authority and found no prejudice to the respondent that could not be remedied by costs.
Legal principles established
#- A nominal party to a cause can always apply to be considered as the principal litigant, being the ultimate beneficiary of the litigation
- Employees have the right to join or leave a trade union at will, and cannot be forced to remain represented by a union
- The court's power to issue orders necessary to meet the ends of justice includes jurisdiction to order substitution of parties
- Leave to re-describe a party's name should be readily granted to ensure the correct parties are bound by the decision
Court orders
#- 1.The applicants are permitted to come on board the proceedings as principal claimants
- 2.The applicants are granted leave to re-describe the respondent as proposed
- 3.The applicants to effect the changes by filing and serving on the respondent an amended statement of claim within 7 days of the order
- 4.The respondent is granted leave to file amended pleadings within 7 days of service of the amended statement of claim
- 5.The costs of the application are granted to the respondent
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act, read with rule 14(6) of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Hotels and Allied Workers Union v Mada Holdings T/A Baobab Sea Lodge/Kilifi Bay (Cause 2 of 2021) [2022] KEELRC 1515 (KLR)", Case Analysis (2022). Cause No 2 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1515/eng@2022-06-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.