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ELRCDismissedBungoma ELRC Cause (claim dated 4th July 2023, transferred from Kakamega to Bungoma)· [2023] KEELRC 3142 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v BOM –Lugulu Girls High School (Employment and Labour Relations Cause 7 of 2023) [2023] KEELRC 3142 (KLR)

Employment and Labour Relations Court
29 November 2023
JKJemimah Keli
1,831 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a trade union's claim against a school because the union had no evidence, only rumours, backing its harassment accusations.

What this practically means

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Executive summary

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The Claimant, a trade union representing among others non-teaching staff in schools, filed a Statement of Claim dated 4th July 2023 seeking an order compelling the Respondent school to stop unfair labour practices against its members on account of their union membership, together with costs and any other relief. A Notice of Motion of even date sought temporary restraining orders, which the Court granted ex parte on 4th July 2023; the application was later consolidated with the claim and the file transferred from Kakamega to Bungoma. The Respondent, through its Principal Nathan Wanjala Sipenji, denied harassment and victimisation, averring that staff joined the union voluntarily, that it facilitated their meeting and remitted dues, and that the case of Patrick Mutoro, a cook, was handled by the Board, which recommended his retirement in the public interest for incompetence - a decision the union itself accepted in its letter of 25th July 2022. The Court framed three issues: whether there was evidence of unfair labour practices; entitlement to reliefs; and costs. Applying section 107 of the Evidence Act, the Court held that the Claimant failed to discharge its burden of proof, relied on rumours, and did not rebut the Respondent's evidence of remittance of dues up to 22nd June 2023. The claim and Notice of Motion were dismissed, the interim orders vacated, and, although costs follow the event, the Court declined to award costs to promote amicable relations. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Respondent engaged in unfair labour practices against the Claimant's members on account of union membership

Holding

No. The Claimant did not discharge its burden of proving harassment, victimisation or non-remittance of dues; its allegations rested on rumours.

Reasoning

The Claimant relied on rumours and produced no evidence of harassment. The letter of 25th July 2022 regarding Patrick Mutoro showed the union accepted the Board's decision that he retire in the public interest. The Respondent rebutted the non-remittance allegation with payment vouchers dated 22nd June 2023. The Court held the claim baseless and without merit and dismissed it.

p. 4
02

Whether the Claimant was entitled to the reliefs sought

Holding

Not entitled; the claim was dismissed and interim orders vacated.

Reasoning

Having found no evidence of unfair labour practices, the Court held the claim and the Notice of Motion of even date to be without merit. The temporary orders restraining the Respondent from harassing, suspending or terminating union members were vacated, and each party was to bear its own costs.

p. 5

Legal principles established

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  • He who alleges must prove; the burden of proof lies on the party asserting facts under section 107 of the Evidence Act
  • Costs follow the event, though the Court retains discretion on awarding costs
  • Written submissions are not pleadings

Court orders

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  1. 1.The claim dated 4th July 2023 and the Notice of Motion of even date are dismissed.
  2. 2.The interim orders in place are vacated.
  3. 3.Each party to bear own costs in the claim and the application.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 29
  • Constitution of Kenya, 2010Article 36
  • Constitution of Kenya, 2010Article 41
  • Evidence ActSection 107
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over unfair labour practices and freedom of association under Articles 36 and 41 of the Constitution of Kenya, 2010 (as invoked by the Claimant)

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 Domestic, Hotels, Educational Institutions and Hospital Workers v BOM –Lugulu Girls High School (Employment and Labour Relations Cause 7 of 2023) [2023] KEELRC 3142 (KLR)", Case Analysis (2023). Bungoma ELRC Cause (claim dated 4th July 2023, transferred from Kakamega to Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3142/eng@2023-11-29

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