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ELRCDismissedCause No 425 of 2019· [2024] KEELRC 761 (KLR)

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)

Employment and Labour Relations Court
11 April 2024
3,482 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant, a registered Trade Union, sued the Respondent, a private members' club, on behalf of three former employees (Grievants) seeking terminal benefits. The Statement of Claim was signed by one Tonge Yoya, who neither indicated his capacity nor proved written authority from the Union's General Secretary as required by sections 2 and 73 of the Labour Relations Act. Applying Banking Insurance and Finance Union (Kenya) v NHIF, the court held the burden of proving authority lies on the signer and, in its absence, declared the pleadings defective for want of execution by an authorized representative. On the merits, the 1st Grievant, who neither filed a witness statement nor testified, failed to prove her claim. The 2nd Grievant's summary dismissal was upheld: his unauthorized use of a prohibited gas cooker constituted insubordination amounting to gross misconduct under section 44 of the Employment Act, and he was afforded due process through a show cause notice and a disciplinary hearing he attended. The 3rd Grievant's resignation, tendered on 30th May 2016 to take effect on 1st June 2016, crystallized before the Respondent purported to reject it; the employer had no power to nullify it, and the purported summary dismissal was declared futile - his contract ended through resignation. Consequently, his claims for compensation for unfair termination, notice pay and service pay all failed, service pay being excluded by section 35(6) of the Employment Act and the pension already paid. The court deprecated the conflation of three distinct causes of action in one suit. The entire case was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the suit was properly mounted on behalf of the Trade Union

Holding

The pleadings were declared defective because Tonge Yoya signed the Statement of Claim without indicating capacity or proving authority from the General Secretary

Reasoning

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.

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02

Whether the 1st Grievant established her claim

Holding

Her claim failed for want of proof as she neither filed a witness statement nor testified

Reasoning

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.

p. 5
03

Whether the 2nd Grievant's contract was validly terminated

Holding

The dismissal was on valid grounds (gross misconduct - insubordination in using a prohibited gas cooker) and followed due procedure

Reasoning

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.

p. 5
04

Whether the 3rd Grievant resigned or was summarily dismissed

Holding

It was declared that his contract ended through resignation, not summary dismissal

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Declaration that the pleadings are defective for want of execution by an authorized representative of the Claimant
  2. 2.Declaration that the 3rd Grievant's contract of service was terminated through resignation and not summary dismissal
  3. 3.Dismissal of the entire suit
  4. 4.Costs of the action awarded to the Respondent

Authorities

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Legislation

  • Labour Relations ActSection 73; Section 2
  • Employment ActSection 35; Section 35(6); Section 44
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (2)

  • Banking Insurance and Finance Union (Kenya) v National Health Insurance Fund & another
    (Employment and Labour Relations Cause E466 of 2023) [2023] KEELRC 2631 (KLR) (26 October 2023) (Ruling)
  • Dharmadhikhari v Professional Media Africa Limited
    (Cause 622 of 2017) [2023] KEELRC 186 (KLR) (30 January 2023) (Judgment)
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

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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 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.