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ELRCAllowedELRC Cause (Nairobi), Notice of Motion dated 2nd June 2022· [2023] KEELRC 533 (KLR)

Kenya Concrete, Structural Ceramic Tiles, Wood Plys & Interior Design Worker Union v Warren Company Limited; Kenya Quarry & Mine Workers Union (Intended Interested Party) (Cause E085 of 2022) [2023] KEELRC 533 (KLR)

Employment and Labour Relations Court
2 March 2023
OKOcharo Kebira
2,080 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court allowed a union to join an employment dispute as an interested party because it held a recognition agreement and CBA directly affecting the outcome.

What this practically means

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Executive summary

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This was an application by an intended interested party union, by a notice of motion dated 2nd June 2022 brought under section 12 of the Employment and Labour Relations Court Act and section 18 of the Civil Procedure Act, seeking to be enjoined as an interested party in an employment dispute, to be served with the claimant's pleadings, and to be allowed to file a replying affidavit. The union, through its General Secretary Wafula Musamia, asserted that the respondent's employees remained its paid-up members, that it held a valid recognition agreement and a collective bargaining agreement with the respondent, and that the court's eventual decision would affect its interests, warranting joinder to avoid it being condemned unheard. The claimant opposed, contending the union had not evidenced membership as required by section 48(3) of the Labour Relations Act, that the recognition agreement appeared forged for want of mandatory particulars under section 54, and that joinder would infringe the constitutional rights of association and fair labour practices of its members. Relying on the Supreme Court's decisions in Communication Commission of Kenya and Muruatetu, the High Court test in Meme v Republic, and the Court of Appeal's decision in Kenya Medical Laboratories Technicians & Technologists Board, the court found the union had an identifiable, non-remote interest, that joinder would allow complete determination of all issues and avoid multiplicity of suits. The claimant's challenges to the recognition agreement and CBA were reserved for the substantive suit where evidence could be tested by cross-examination. The application was allowed in its entirety, with costs in the cause.

Key legal issues

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01

Whether the intended interested party union has an identifiable stake warranting enjoinment.

Holding

Yes; the union has a recognisable and non-remote interest given its claimed recognition and CBA with the Respondent, and findings in the matter are likely to affect it.

Reasoning

The court applied the tests in Communication Commission of Kenya, Meme v Republic, Kenya Medical Laboratories Technicians Board and Muruatetu. It found the union's interest identifiable and proximate, that all issues would be conclusively determined with it on board, multiplicity of suits avoided, and findings likely to affect it, warranting joinder to avoid it being condemned unheard.

p. 5
02

Whether the Claimant's attack on the recognition agreement and CBA should defeat joinder.

Holding

No; such challenges to documents must be tested through evidence in the substantive suit with cross-examination, not on affidavit in a joinder application.

Reasoning

The court held that the Claimant's assault on the recognition agreement and CBA raised issues of validity, credibility and authenticity that can only be resolved by viva voce evidence from all parties subject to cross-examination in the substantive suit, not by affidavit evidence on an interlocutory joinder application.

p. 5

Legal principles established

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  • The true test for joinder of an interested party is whether the intended interested party has an identifiable stake, or a legal interest or duty in the proceedings.
  • Enjoinment as an interested party is discretionary and requires a demonstrable personal interest, prejudice on non-joinder, and distinct submissions.

Court orders

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  1. 1.The applicant is allowed to come on board the matter as an interested party.
  2. 2.The Applicant is granted leave to file a response to the Claim within 14 days of service of the Claimant's pleadings.
  3. 3.The Claimant to serve the pleadings on the Applicant for this stated purpose.
  4. 4.Costs of the application be in the cause.

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 12
  • Civil Procedure Act 2010section 18(1)(b) & (2)
  • Labour Relations Act 2007section 48(3)
  • Labour Relations Actsection 54
  • Constitution of Kenya 2010Article 36
  • Constitution of Kenya 2010Article 41(1), (2)(a), (b) & (c)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 2

Cases cited (4)

  • Communication Commission of Kenya & 4 others v Royal Media Services Ltd & 7 others
    [2014] eKLR
  • Meme v Republic
    [2004] 1 EA 124
  • Kenya Medical Laboratories Technicians & Technologists Board & 6 others v The Attorney General & 4 others
    [2017] eKLR
  • Mumo Matemo case
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act; section 18(1)(b) & (2) of the Civil Procedure Act 2010

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 Concrete, Structural Ceramic Tiles, Wood Plys & Interior Design Worker Union v Warren Company Limited; Kenya Quarry & Mine Workers Union (Intended Interested Party) (Cause E085 of 2022) [2023] KEELRC 533 (KLR)", Case Analysis (2023). ELRC Cause (Nairobi), Notice of Motion dated 2nd June 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/533/eng@2023-03-02

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