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ELRCDismissedMemorandum of Claim dated 26th November 2018· [2024] KEELRC 859 (KLR)

Kenya Engineering Workers Union v Africa Metal Works Limited (Employment and Labour Relations Cause 61 of 2018) [2024] KEELRC 859 (KLR)

Employment and Labour Relations Court
16 April 2024
AMAnna Ngibuini Mwaure
2,380 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a union's claim because it failed to prove the sacked workers were actually its members.

What this practically means

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Executive summary

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The Claimant, a trade union registered for unionisable employees in the engineering industry, sued the Respondent employer claiming that the Respondent broke away from East Africa Works Limited with employees who were already union members, continued deducting union dues, and later issued redundancy termination notices to 8 members to punish their union affiliation. The Claimant sought enforcement of its recognition efforts and remedies for unfair termination under Sections 40 and 49 of the Employment Act. The Respondent denied dealings with the union, asserting it was a separate legal entity with no recognition agreement, no check-off system, and that the subject employees were on fixed-term contracts that were lawfully terminated with notice and full dues paid, some employees executing discharge vouchers. The court framed two issues: the union's locus standi and entitlement to reliefs. Applying Court of Appeal authority (Kenya Shoe & Workers Union v Modern Soap Factory and Modern Soap Factory v Kenya Shoe and Leather Workers Union), the court held that absence of a recognition agreement does not bar a union from representing members in court, but the union must prove membership. The Claimant produced only a deduction authorisation notice, no evidence of any Section 48 check-off deductions, and no witness statements from the grievants confirming membership; the grievants had even asked for time to decide on joining. Relying on Section 107 of the Evidence Act and Alfred Kioko Muteti, the court found the Claimant failed to discharge its burden of proof. The claim was dismissed with each party bearing its own costs.

Key legal issues

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01

Locus standi of a trade union without a recognition agreement to sue on behalf of employees

Holding

A trade union's standing depends not on a recognition agreement but on proving membership of the employees it purports to represent; here membership was not proved, so the union lacks locus standi

Reasoning

The court distinguished the representational role in court from the collective bargaining role under a recognition agreement, following Modern Soap Factory. It then examined the evidence: only a notice authorising deduction was produced; no deductions under Section 48 were effected; grievants asked for time to decide on joining; and no witnesses or sworn statements confirmed membership. The union thus failed to prove the essential fact of membership.

p. 5
02

Burden of proof on the Claimant's allegations of membership and deductions

Holding

The Claimant failed to discharge the statutory burden of proof under Section 107 of the Evidence Act; pleadings are not evidence

Reasoning

The court applied Section 107 of the Evidence Act and the Alfred Kioko Muteti decision to hold that whoever asserts facts must prove them by evidence. The Claimant produced no witness or sworn statements from the employees to confirm union membership, and its averments about the Respondent's membership of the FKE minor engineering group and continuing deductions were unsupported.

p. 5
03

Entitlement to reliefs for alleged unfair redundancy under Section 40 of the Employment Act

Holding

Not reached on the merits; the claim was dismissed because the union could not sustain it, with a note that grievants could sue personally if aggrieved

Reasoning

Having found the union lacked locus standi, the court declined to grant the Section 49 remedies sought (compensation for the unexpired period of fixed-term contracts or payment for the remaining contract period), observing that the terminated employees could pursue their own claims in their own right.

p. 5

Legal principles established

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  • Lack of a recognition agreement does not bar a trade union from representing its members in court, but the union must prove the employees are its members
  • A party who alleges a fact bears the burden of proving it with evidence; pleadings alone are not evidence

Court orders

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  1. 1.The claim is dismissed as not proved.
  2. 2.Each party to meet their own costs of the suit.
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over trade disputes (Labour Relations Act, Section 62 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 Engineering Workers Union v Africa Metal Works Limited (Employment and Labour Relations Cause 61 of 2018) [2024] KEELRC 859 (KLR)", Case Analysis (2024). Memorandum of Claim dated 26th November 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/859/eng@2024-04-16

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