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ELRCDismissedCause No E018 of 2022· [2023] KEELRC 1479 (KLR)

Union of Veterinary Practitioners Kenya, Taita Taveta Branch v County Public Service Board & another (Cause E018 of 2022) [2023] KEELRC 1479 (KLR)

Employment and Labour Relations Court
8 June 2023
MMM. Mbarũ
1,288 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan trade union can sue an employer in court without first obtaining a recognition agreement — recognition and standing to litigate are separate legal rights.

What this practically means

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Executive summary

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The respondents filed a Notice of Preliminary Objection dated December 5, 2022 seeking the striking out of the claimant trade union's Memorandum of Claim dated March 21, 2022, which sought to compel the respondents to sign a Recognition Agreement, declare the industrial action of March 14, 2022 lawful, and nullify threats against union members. The objections were founded on want of locus standi, prematurity and defectiveness, contravention of Article 159(2)(c) of the Constitution, Section 15 of the Industrial Court Act, Sections 54(6) and 73(1) of the Labour Relations Act, and the doctrine of exhaustion. The claimant did not participate; counsel indicated conflict of interest, and the respondents applied for the objections to be allowed and the suit dismissed. The court, M. Mbarũ J, held that recognition under Section 54 of the Labour Relations Act regulates only collective bargaining capacity, while a trade union's right to represent its members in court is secured by Section 22 of the ELRC Act, so the claimant had proper standing. On exhaustion, the court held that a dispute over refusal to recognise a trade union is an exceptional matter that may be filed directly with the court under Section 73(2) LRA, and it would be contrary to justice and the rule of law to decline jurisdiction. The preliminary objection was dismissed with no orders as to costs, with hearing directions to issue.

Key legal issues

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01

Locus standi of the claimant trade union

Holding

The claimant has proper standing; court representation is governed by Section 22 ELRC Act and does not depend on recognition under Section 54 LRA

Reasoning

Recognition under Section 54 LRA concerns only collective bargaining capacity, requiring a simple majority of unionisable employees. Capacity to represent members in court is a separate right secured by Section 22 of the ELRC Act. Having recruited members in the respondent's employment, the claimant has proper standing to file and attend before the court.

p. 3
02

Contravention of Article 159(2)(c), Section 15 ELRC Act and Sections 54(6) and 73(1) LRA / doctrine of exhaustion

Holding

The claim is properly before the court; refusal of recognition is an exceptional matter that may be filed directly, and the doctrine of exhaustion does not apply

Reasoning

Where a statute directs how a right and remedy are secured, statutory provisions apply unless parties consent to other lawful dispute resolution methods. Section 73(2) LRA permits direct filing where the dispute relates to refusal to recognise a trade union. Section 15(7) ELRC Act gives the court discretion to refer to conciliation only if it becomes apparent the dispute ought to have been so referred, which is not the case here.

p. 3

Legal principles established

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  • A trade union need not be recognised by an employer to have standing to represent its members before the ELRC; representation is secured under Section 22 of the ELRC Act
  • A dispute over refusal to recognise a trade union may be filed directly with the court without prior conciliation or exhaustion of alternative mechanisms

Court orders

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  1. 1.The Notice of Preliminary Objection dated December 5, 2022 is dismissed
  2. 2.No orders as to costs
  3. 3.Hearing directions shall be issued

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(c)
  • Labour Relations Act, 2007Sections 54, 54(6), 73(1), 73(2)
  • Employment and Labour Relations Court Act, 2011Sections 15, 15(7), 22
  • Industrial Court ActSection 15

Cases cited (1)

  • Teachers Service Commission (TSC) v Kenya Union of Teachers (KNUT) & 3 Others
    [2015] eKLR
Jurisdiction invoked
Sections 22 and 15 of the Employment and Labour Relations Court Act, 2011; Section 73(2) of the Labour Relations Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Union of Veterinary Practitioners Kenya, Taita Taveta Branch v County Public Service Board & another (Cause E018 of 2022) [2023] KEELRC 1479 (KLR)", Case Analysis (2023). Cause No E018 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1479/eng@2023-06-08

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