Kenya Union of Commercial, Food and Allied Workers v Kiambu (Cause 1363 of 2018) [2023] KEELRC 2939 (KLR)

Employment and Labour Relations Court

17 November 2023

BOByram Ongaya

1,111 words in judgment

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AI-assisted case brief

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The bottom line

A Kenyan employment court dismissed both a union's claim and an employer's counterclaim because the union proved no membership and the employer lacked legal identity.

What this practically means

Executive summary

The claimant trade union filed a memorandum of claim on 06.09.2018 on behalf of its alleged member, William Nyakundi Makori, employed by the respondent on 23.04.2012 as a general worker. It sought unconditional reinstatement, damages for loss of earnings, costs, or alternatively terminal benefits computed under the London Distillers CBA, including notice pay, accrued and pro-rata leave, salary for the period out of employment, service pay, CBA salary arrears, payment for public holidays and maximum compensation for wrongful loss of employment, totalling about Kshs 641,102.80. The claimant alleged the termination was on account of union membership and that the respondent defied conciliation. The respondent, through Gichina Macharia Matotse Advocates, counter-claimed on 07.11.2018 for dismissal of the claim with costs, damages of Kshs 1,000,000/= for breach of sound industrial relations, and a declaration that the termination was fair and lawful, asserting it was a private farm and residence outside the CBA's coverage, with no recognition agreement and no proof of the grievant's union membership. The court framed the first issue as whether the grievant was the claimant's member, holding that membership is to representation what collective bargaining is to recognition, and that the claimant failed to prove membership - a failure confirmed by the grievant's own testimony. With no membership and no binding CBA, the CBA terms could not be incorporated into the contract. On the counterclaim, the court found the respondent was not a person in law and could not obtain remedies in court. Both the statement of claim and the counterclaim were dismissed with no orders as to costs.

Key legal issues

Union membership as a precondition to representation

Holding

The claimant failed to prove the grievant was its member; the suit failed for want of that precondition

Reasoning

There was no recognition agreement or binding CBA between the parties, the letter of appointment did not incorporate the collective agreement, and the grievant himself testified there was no document on record showing union membership. Standing to sue on behalf of a grievant therefore failed.

p. 3

Incorporation of CBA terms into the contract of service

Holding

Since there was neither union membership nor a binding collective agreement, the CBA terms could not ground the claim

Reasoning

The prayers were based on the London Distillers CBA, which was not shown to bind the parties. Without membership and recognition, incorporation of CBA terms into the individual contract was legally impossible.

p. 4

Legal capacity of the respondent to counterclaim

Holding

The respondent, being pleaded to be not a person in law, could not prosecute the counterclaim

Reasoning

It was pleaded and submitted that the respondent is not a person in law; a non-existent legal person cannot claim and obtain remedies in a court of law, so the counterclaim collapsed without more.

p. 4

Legal principles established

A trade union cannot institute or maintain a suit for or represent an employee unless it is shown that the employee is a member of the union; membership is to representation as collective bargaining is to recognition.
Terms of a collective agreement cannot be incorporated into an employee's contract of service where the employee is not a union member and there is no binding collective agreement.
A person not existing in law cannot claim and obtain remedies in a court of law.

Court orders

1.The statement of claim is dismissed
2.The counterclaim is dismissed
3.There are no orders as to costs (each party to bear own costs)

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (statutory basis not expressly cited in the judgment)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Kiambu (Cause 1363 of 2018) [2023] KEELRC 2939 (KLR)", Case Analysis (2023). Cause No 1363 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2939/eng@2023-11-17

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