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ELRCDismissedELRC Claim (Nairobi)· [2023] KEELRC 3365 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Narugi Development Sacco Ltd (Employment and Labour Relations Cause 1350 of 2018) [2023] KEELRC 3365 (KLR)

Employment and Labour Relations Court
14 December 2023
BMB. O. M. Manani
2,526 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Employment and Labour Relations Court dismissed a Sacco worker's unfair termination claim because he couldn't prove he was actually an employee.

What this practically means

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Executive summary

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The Claimant trade union sued on behalf of its member, John Ndichu Karoki (the grievant), alleging that Narugi Development Sacco Ltd (originally named as Narugi Sacco Ltd, later amended) unfairly terminated the grievant's contract of service as a Stage Warden engaged on 12th November 2012. The grievant claimed he was suspended and terminated after querying the Respondent's failure to remit NSSF deductions, and sought compensation for unfair termination plus underpayment, house allowance and annual leave benefits. The Respondent denied employing the grievant, alleging the supporting documents were forgeries reported to the police, and raised the Claimant's locus standi at submissions stage. The court framed four issues. On standing, it held that both the grievant and the union affirmed the membership, which a membership card evidenced, and that a recognition agreement is only a prerequisite for collective bargaining, not for a union to represent members in court, following section 54(1) of the Labour Relations Act and Modern Soap Factory. On employment status, the court held the grievant bore the burden under sections 107-109 of the Evidence Act. His documents were never formally produced in evidence; the Ministry of Labour correspondence was not proved delivered; the NSSF statements were internally contradictory (an earlier statement omitted the Respondent as employer) and no NSSF official testified; and the Githunguri traffic proceedings did not implicate the Respondent. The Respondent's witness described the grievant as self-employed at the bus stage. Finding the employment relation unproved, the court dismissed the entire suit with costs to the Respondent.

Key legal issues

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01

Locus standi of a trade union without a recognition agreement

Holding

The Claimant union has locus standi to sue on behalf of its member; the objection fails.

Reasoning

Both the grievant and the union affirmed the membership, which the card evidenced. A recognition agreement is only required for collective bargaining, not for a union to represent member-employees in court, per section 54(1) of the Labour Relations Act and Modern Soap Factory.

p. 3
02

Existence of an employment relation

Holding

The grievant failed to prove on a balance of probabilities that he was an employee of the Respondent; the claim fails.

Reasoning

The burden lay on the grievant under sections 107-109 of the Evidence Act. The documents marked for identification were never produced; the Labour Ministry letters were not proved to have been received; the contradictory NSSF statements were unexplained as no NSSF official testified; the traffic case proceedings did not involve the Respondent. The Respondent's witness described the grievant as self-employed.

p. 6

Legal principles established

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  • A trade union without a recognition agreement has locus standi to represent its members in court; a recognition agreement is only necessary for collective bargaining.

Court orders

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  1. 1.The suit is dismissed with costs to the Respondent
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment and Labour Relations Court Act / Labour Relations Act)

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 Commercial, Food and Allied Workers v Narugi Development Sacco Ltd (Employment and Labour Relations Cause 1350 of 2018) [2023] KEELRC 3365 (KLR)", Case Analysis (2023). ELRC Claim (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3365/eng@2023-12-14

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