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ELRCDismissedNot stated on the face of the judgment (memorandum of claim dated January 1, 2020)· [2023] KEELRC 327 (KLR)

Kenya Building Construction Timber & Furniture Employees Union v Aegis Construction Limited (Cause E704 of 2020) [2023] KEELRC 327 (KLR)

Employment and Labour Relations Court
10 February 2023
AMAnna Ngibuini Mwaure
1,529 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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A Kenyan trade union can take its members' employment disputes to court even without a recognition agreement with the employer.

What this practically means

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Executive summary

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The respondent raised a preliminary objection seeking striking out of the claimant union's memorandum of claim dated January 1, 2020, on the ground that the union lacked locus standi to commence, represent or maintain the cause on behalf of grievants, there being no recognition and collective bargaining agreement between the union and the respondent as required under section 54(3) of the Labour Relations Act, 2007. The claimant, relying on section 22 of the Industrial Court Act and authorities including Communication Workers Union v Safaricom Ltd, Modern Soap Factory v Kenya Shoe & Leather Workers Union (Court of Appeal), Kenya Hotels and Allied Workers Union v Diani Sea Resort and Kenya Shoe & Leather Workers Union v Falcon Turners Ltd, submitted that recognition agreements exist solely for collective bargaining and are not a precondition to representing members in court. The court, Mwaure J, framed one issue: whether the claimant had locus standi to represent the respondent's employees. Adopting the Court of Appeal's reasoning that a recognition agreement and court representation are distinct roles, and noting that the right to representation flows from the union constitution, section 22 of the Industrial Court Act and the constitutional right of association, the court held that no statutory proviso requires a recognition agreement or CBA before a union may represent its members. The preliminary objection was dismissed with costs to the claimant, and the claimant was directed to invite the respondent to take a hearing date before the Deputy Registrar within 14 days so the case proceeds to hearing without further delay.

Key legal issues

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01

Locus standi of a trade union without a recognition agreement/CBA

Holding

A registered trade union may represent its members in court; recognition agreements serve collective bargaining purposes only and are not required for court representation

Reasoning

The court noted conflicting ELRC decisions but adopted the Court of Appeal's position in Modern Soap Factory that recognition agreements and court representation are distinct roles. Section 22 of the Industrial Court Act grants union representatives the right to appear for members, and representation flows from the union constitution and the constitutional right of association. No statutory proviso conditions representation on a recognition agreement.

p. 2

Legal principles established

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  • A trade union has locus standi to represent its members in court whether individually or collectively, and a recognition agreement or CBA is not a precondition to such representation

Court orders

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  1. 1.The preliminary objection is dismissed with costs to the claimant
  2. 2.The claimant is ordered to invite the respondent to take a hearing date before the Deputy Registrar within 14 days so the case is fixed for hearing without further delay

Authorities

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Legislation

  • Labour Relations Actsection 54(3); section 2 (definition of recognition agreement)
  • Industrial Court Actsection 22
  • Constitution of KenyaArticle 159(2)(d); Article 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Actsection 1B

Cases cited (5)

  • Communication Workers Union Vs Safaricom Ltd
    (2014) eKLR
  • Modern Soap Factory vs Kenya Shoe & Leather Workers Union
    (2020) eKLR; Civil Case No 37 of 2019
  • Kenya Hotels And Allied Workers Union Vs Diani Sea Resort Carslake Nominee Ltd
    Cause No 507 of 2014
  • Kenya Shoe & Leather Workers Union vs Falcon Turners Ltd
    (2013) eKLR
  • Law Society of Kenya vs Commissioner of Lands & Others
    Case No 464 of 2000 KLR 706
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Industrial Court Act and the Labour Relations Act, 2007 (Article 162(2) jurisdiction implied)

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 Building Construction Timber & Furniture Employees Union v Aegis Construction Limited (Cause E704 of 2020) [2023] KEELRC 327 (KLR)", Case Analysis (2023). Not stated on the face of the judgment (memorandum of claim dated January 1, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/327/eng@2023-02-10

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