Kenya Plantation Agricultural Workers Union v Lauren International Flowers Limited (Employment and Labour Relations Cause E306 of 2022) [2023] KEELRC 107 (KLR)
The bottom line
#Kenya's Employment Court dismissed Equity Bank's attempt to revisit an earlier ruling, confirming that unions can sue for their members without a recognition agreement.
What this practically means
#Executive summary
#Key legal issues
#Requirements for review under Rule 33
Review lies only for discovery of new and important matter after due diligence, mistake or error apparent on the face of the record, need for clarification, or other sufficient reason; none was established.
The court set out the four grounds in Rule 33 and, applying Pancras T Swai vs Kenya Breweries Limited, held that a court's lack of awareness of a statute or case-law cannot amount to an error apparent on the record or new evidence. The grounds for review relate to fact, not law, and a wrong conclusion of law is a ground of appeal, not review.
Whether BIFU vs Equity Bank Ltd was new and important matter
No; and in any event the decision is factually distinct, concerning CBA nexus and agency fees rather than union dues and harassment of union members.
The court applied Swai to reject the reliance on the later decision of Nzioki wa Makau J. It then distinguished the case on its facts: the cited decision dealt with collective bargaining and agency fees, whereas the instant claim concerns undeducted union dues and interference with union membership.
Locus standi of the trade union
The Claimant union has locus standi to sue in its own name on behalf of its members; associational standing is endorsed by the Constitution and precedent.
The court adopted Modern Soap Factory vs Kenya Shoe and Leather Workers Union and Kenya Shoe & Leather Workers Union vs Falcon Tanners Ltd, and reiterated that Articles 22(2) and 258(2)(d) broaden standing post-2010. The composite claim is not restricted to Mr Walubengo's termination but includes union dues and victimisation of members.
Legal principles established
#- A court's lack of awareness of a statute or case-law is not a mistake or error apparent on the face of the record, nor new and important matter justifying review; grounds for review relate to issues of fact, not law.
- Dissatisfaction with a court's findings constitutes grounds of appeal, not grounds of review.
- A registered trade union whose constitution so empowers has standing to institute and prosecute claims on behalf of its members; a recognition agreement is not the basis upon which a trade union represents its members in court.
- The promulgation of the 2010 Constitution enlarged the scope of locus standi through Articles 22 and 258.
Court orders
#- 1.The Application dated July 18, 2022 seeking review of the Ruling of June 10, 2022 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Rule 33(1)(a)(b)(d) of the Employment and Labour Relations Court (Procedure) Rules and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation Agricultural Workers Union v Lauren International Flowers Limited (Employment and Labour Relations Cause E306 of 2022) [2023] KEELRC 107 (KLR)", Case Analysis (2023). Review Application dated July 18, 2022 arising from Ruling of June 10, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/107/eng@2023-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.