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ELRCDismissedCause No E293 of 2022· [2023] KEELRC 1015 (KLR)

Kenya National Union of Service Employees v One Facility Management (Cause E293 of 2022) [2023] KEELRC 1015 (KLR)

Employment and Labour Relations Court
27 April 2023
OKOcharo Kebira
908 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to force an employer to deduct union dues at an early stage, saying such contested issues must wait for the full hearing.

What this practically means

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Executive summary

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The Claimant union moved the Employment and Labour Relations Court at Nairobi by notice of motion seeking orders compelling the Respondent to deduct and remit union dues under a check-off notice served on 29 February 2021, and a further order that the Respondent pay union dues from its own pocket as a deterrent. The application, anchored on section 12(3) of the Employment and Labour Relations Act, section 74 of the Labour Relations Act, rules 16 and 17 of the ELRC Procedure Rules and Article 41 of the Constitution, was supported by an affidavit of Joseph Odhiambo. The Claimant recounted letters of June and July 2021 demanding remittance, an unresolved dispute before the Cabinet Secretary for Labour, appointment of a conciliator on 31 January 2022, the Respondent's non-attendance at conciliation meetings, and issuance of a certificate of unresolved dispute on 28 March 2022. The Respondent objected on grounds that the Claimant lacked locus standi absent a recognition agreement under section 54(3) of the Labour Relations Act, that the orders sought were mandatory injunctions ungrantable at interlocutory stage absent special circumstances, and that the named union members were no longer its employees. The court, Ocharo Kebira J, declined to determine these contested matters, holding the orders mirrored the substantive reliefs in the statement of claim and that the issues required oral evidence. The notice of motion was dismissed with costs.

Key legal issues

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01

Whether mandatory-type orders compelling deduction and remittance of union dues can issue at the interlocutory stage

Holding

The court declined to grant the orders because they mirrored the substantive reliefs and would amount to predetermining the main suit

Reasoning

The court observed that the orders sought in the notice of motion were word for word the reliefs in the statement of claim. Determining them on affidavit evidence would expose the court to accusations of predetermination, and the contested factual matters - including whether the named union members remained employees and the absence of a recognition agreement - required substantiation by oral evidence at trial.

p. 2
02

Suitability of affidavit evidence for determining the disputes raised

Holding

Both the Applicant's affidavit matters and the Respondent's grounds of objection require oral evidence and cannot be resolved interlocutorily

Reasoning

The court held that the questions of union membership, check-off authorization and the Respondent's refusal to deduct dues were contested factual issues. Affidavit evidence was inadequate to canvass them, so the appropriate course was to leave them for determination at the full hearing of the main suit.

p. 2

Legal principles established

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  • A court should not determine an interlocutory application whose orders mirror the substantive reliefs in the main suit, to avoid predetermination of the suit
  • Disputed matters concerning union membership, recognition and check-off deductions cannot be adequately resolved on affidavit evidence and require oral evidence

Court orders

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  1. 1.The Applicant's notice of motion application is dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations ActSection 12(3)(i),(ii),(iii)
  • Labour Relations Act 2007Section 74
  • Labour Relations ActSection 54(3)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 16 and 17
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
Jurisdiction invoked
Section 12(3)(i),(ii),(iii) of the Employment and Labour Relations Act; section 74 of the Labour Relations Act 2007; rules 16 and 17 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Article 41 of the Constitution of Kenya

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 National Union of Service Employees v One Facility Management (Cause E293 of 2022) [2023] KEELRC 1015 (KLR)", Case Analysis (2023). Cause No E293 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1015/eng@2023-04-27

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