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ELRCDismissedNot stated in extract· [2023] KEELRC 1862 (KLR)

Kenya Union of Hair & Beauty Workers v Style Industries Limited (Cause 450 of 2018) [2023] KEELRC 1862 (KLR)

Employment and Labour Relations Court
25 July 2023
NMNzioki wa Makau
1,302 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to strike out a union's case, ruling that questions about union membership and recognition agreements need a full hearing, not a shortcut objection.

What this practically means

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Executive summary

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The respondent raised a preliminary objection in its defence seeking to strike out the claimant union's suit on the ground that it lacked locus standi to represent the grievants. Mr Ouma argued, relying on section 54 of the Labour Relations Act and Ndolo J's decision in Kenya Private Security Workers Union v Lavington Security Limited, that in the absence of a recognition agreement and proof that the grievants were members, the union could not sue on their behalf. Mr Burugu for the claimant countered that the objection was not a pure point of law, that no recognition agreement is required for representation, citing Kenya Union of Commercial, Food and Allied Workers v WRMA, and relied on article 41 of the Constitution, sections 4 and 54 of the LRA and section 8 of the Employment Act, arguing by parity of reasoning from section 48 of the Employment Act that union representation before a labour officer extends to court appearances. The court applied the Mukisa Biscuit test, holding that the objection required the court to ascertain facts, namely whether the grievants were members and whether a recognition agreement existed, and was therefore not a pure point of law. The court declined to strike out the suit and directed that the parties proceed to hearing on the merits, leaving the question of the union's locus standi to be determined after hearing both sides.

Key legal issues

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01

Whether the respondent's objection qualified as a preliminary objection on a pure point of law

Holding

It did not, because it required the court to ascertain facts about union membership and the recognition agreement before determining locus standi

Reasoning

Applying Mukisa Biscuit, a preliminary objection must rest on a pure point of law assuming the facts pleaded are correct. Here the court had to establish whether the grievants were members of the claimant Union and whether a recognition agreement existed. Since factual ascertainment is required, the objection fails as a preliminary point and the suit must proceed to hearing on the merits.

p. 3
02

Whether absence of a recognition agreement curtails union representation in court

Holding

The court found insufficient material to determine locus standi at the preliminary stage, leaving the question for full hearing

Reasoning

The court noted the definition of a recognition agreement under the Labour Relations Act and that none existed. The claimant relied on article 41 of the Constitution, section 4 of the LRA and section 48 of the Employment Act arguing representation before a labour officer extends by parity of reasoning to court. The court held there was insufficient material to determine the issue without hearing the parties.

p. 2

Legal principles established

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  • A preliminary objection must be on a pure point of law and cannot be raised where any fact has to be ascertained

Court orders

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  1. 1.The invitation to strike out the suit is declined
  2. 2.The parties to proceed to hearing on the merits barring any procedural impediments

Authorities

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Legislation

  • Labour Relations Actsections 2, 4, 54
  • Employment Actsections 8, 48
  • Constitution of Kenyaarticle 41

Cases cited (4)

  • Kenya Private Security Workers Union v Lavington Security Limited
    Cause No 377 of 2013 [2013] eKLR
  • Transport and Allied Workers Union v DHL Global Forwarding (K) Limited
    Cause No 745 of 2010 (unreported)
  • Kenya Union of Commercial, Food and Allied Workers v Water Resource Management Authority & another
    [2015] eKLR
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    [1969] EA 696
Jurisdiction invoked
Article 41 of the Constitution; Labour Relations Act; Employment Act (first-instance cause)

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 Union of Hair & Beauty Workers v Style Industries Limited (Cause 450 of 2018) [2023] KEELRC 1862 (KLR)", Case Analysis (2023). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1862/eng@2023-07-25

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