Kenya Union of Domestic Workers, Hotels, Educational Institutions, Hotels and Allied Workers (KUDHEIHA) v United Kenya Club (Cause 425 of 2019) [2024] KEELRC 761 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit was properly mounted on behalf of the Trade Union
The pleadings were declared defective because Tonge Yoya signed the Statement of Claim without indicating capacity or proving authority from the General Secretary
Section 73 of the Labour Relations Act and section 2 define an authorized representative as the General Secretary or a person authorized by the General Secretary in writing. Tonge Yoya did not assert he was General Secretary nor produce written authority, and no evidence at trial established his authority. The court cannot presume validity; the pleadings were therefore defective for want of execution by an authorized representative.
Whether the 1st Grievant established her claim
Her claim failed for want of proof as she neither filed a witness statement nor testified
The 1st Grievant did not file a witness statement and did not attend court to testify. The other Grievants' evidence did not address her case. In the absence of any evidence supporting her claim, she failed to meet the legal standard of proof, and her case failed for want of proof.
Whether the 2nd Grievant's contract was validly terminated
The dismissal was on valid grounds (gross misconduct - insubordination in using a prohibited gas cooker) and followed due procedure
The 2nd Grievant used a gas cooker expressly prohibited by management without authorization, constituting insubordination warranting summary dismissal under section 44 of the Employment Act. A show cause notice dated 7th May 2018 was issued and a disciplinary hearing held on 9th May 2018 which he attended; termination followed that process, satisfying procedural fairness.
Whether the 3rd Grievant resigned or was summarily dismissed
It was declared that his contract ended through resignation, not summary dismissal
The 3rd Grievant tendered his resignation on 30th May 2016 to take effect on 1st June 2016. The Respondent's purported rejection on 2nd June 2016 came after the resignation had crystallized, and the employer has no power to nullify a resignation. The subsequent purported summary dismissal for absconding was futile as the employment relationship had already lapsed.
Legal principles established
#- Pleadings instituting proceedings in the name of a Trade Union must be signed by the General Secretary or a person duly authorized in writing by the General Secretary; the burden of proving such authority rests on the person who signed
- Once an employee tenders resignation, it takes effect on the date expressed; the employer has no power to nullify or delay it
- An employee who is a beneficiary of NSSF or another pension scheme is not entitled to claim service pay under section 35(6) of the Employment Act
Court orders
#- 1.Declaration that the pleadings are defective for want of execution by an authorized representative of the Claimant
- 2.Declaration that the 3rd Grievant's contract of service was terminated through resignation and not summary dismissal
- 3.Dismissal of the entire suit
- 4.Costs of the action awarded to the Respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Labour Relations Act (Section 73, Labour Relations Act on authorized representatives)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic Workers, Hotels, Educational Institutions, Hotels and Allied Workers (KUDHEIHA) v United Kenya Club (Cause 425 of 2019) [2024] KEELRC 761 (KLR)", Case Analysis (2024). Cause No 425 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/761/eng@2024-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.