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ELRCDismissedMemorandum of Claim dated 5th April 2019 (ELRC)· [2024] KEELRC 1076 (KLR)

Kenya Hotels and Allied Workers Union v Panari Hotel; Gitau (Interested Party) (Cause 218 of 2019) [2024] KEELRC 1076 (KLR)

Employment and Labour Relations Court
8 May 2024
3,148 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed hotel employees' claim that retiring them at 55 was unfair, because their collective bargaining agreement set retirement at 55, not 60.

What this practically means

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Executive summary

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The Claimant Union sued the Respondent Hotel on behalf of seven Grievants, all former management-level employees, who were retired on 31st December 2017 upon attaining 55 years, pursuant to a notice dated 27th October 2017. The Union sought declarations that the early retirement was unfair, reinstatement or compensation under section 49 of the Employment Act, payment of salaries up to age 60, and costs. The Respondent admitted the employment relationships but maintained the retirements were lawful, relying on a CBA between the Kenya Association of Hotel Keepers and Caterers and KUDHEIHA in force at the material time, whose clause 27(a) permitted retirement at 55 years, and invoking section 59 of the Labour Relations Act on the binding nature of CBAs. The Court first addressed representation, finding the Claimant Union had no recognition agreement with the Respondent and that the Grievants were not demonstrated to be its members, their payslips showing KUDHEIHA deductions; it struck out the Union's name and substituted the Grievants and an Interested Party as Claimants. On the merits, the Court held the registered CBA governed the parties' rights and that the Grievants could not claim the civil service retirement age of 60 in a sector with differentiated retirement terms, any change being a matter for future collective bargaining. The claim was dismissed as devoid of merit, with no order as to costs, the Court observing the Grievants were misguided by the Union. Judgment delivered at Nairobi on 8th May 2024 by Nzioki Wa Makau J.

Key legal issues

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01

Whether the Claimant Union had locus standi to represent the Grievants

Holding

The claim was not properly presented by the Union; the Grievants were not shown to be its members and their payslips indicated deductions to KUDHEIHA, so the Union's name was struck out and substituted with the Grievants and the Interested Party as Claimants

Reasoning

The Court found the Claimant Union had no recognition agreement with the Respondent and no demonstrated membership of the Grievants. The payslips showed KUDHEIHA deductions. The Court held trade unions cannot meddle in matters that do not apply to them, but rather than striking out the suit entirely, it substituted the Grievants themselves as Claimants, allowing the claim to be determined on its merits.

p. 5
02

Whether the Grievants were entitled to remain in service until age 60

Holding

No - the CBA in force at the time of retirement, made under the KAHKC and KUDHEIHA, provided under clause 27(a) that employees who had attained 55 years could retire or be retired

Reasoning

The Respondent was a member of the employers' association which had a recognition agreement and CBA with KUDHEIHA. Under section 59 of the Labour Relations Act, CBA terms are incorporated into individual contracts and bind employees covered by the CBA. The Grievants' contracts were therefore lawfully terminated on account of age per clause 27(a), and private-sector employees cannot claim the civil service retirement age of 60.

p. 5
03

Whether the retirement of the Grievants at 55 was unfair termination

Holding

The claim was dismissed as misplaced; retirement in terms of the CBA was lawful and the Grievants could not obtain the benefit of civil service terms

Reasoning

The Court reasoned that the Grievants sought in effect a variation of an existing registered CBA without going through the formal process to engineer such change. The sector has a differentiation in retirement age from the civil service, and any change is a matter for future collective bargaining. Retirement pursuant to the applicable CBA was therefore not unfair termination.

p. 6

Legal principles established

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  • Trade unions cannot take up briefs or mount claims for persons not demonstrated to be their members; a union without a recognition agreement or membership over the grievants lacks standing to present such a claim
  • A registered CBA governs the conduct of parties and their rights and obligations, including retirement age provisions, in addition to the provisions of the law or workplace policies

Court orders

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  1. 1.Struck out the name of the Claimant Union for purposes of the suit and substituted the names of the Grievants and the Interested Party as Claimants in the suit
  2. 2.Dismissed the claim as devoid of any merit
  3. 3.No order as to costs

Authorities

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Legislation

  • Employment Actsections 5(2), 41, 43, 45, 47(5), 49
  • Labour Relations ActCap 233, sections 4-8, 19, 54(1), 54(2) & (3), 59, 59(3), 73(3)
  • Regulation of Wages and Conditions of Employment Act (Cap 299) / Regulation of Wages (Hotel and Catering Trades) Orderrepealed provisions on retirement age
  • Labour Institutions Act2007 repeal provisions
  • Interpretation and General Provisions Actsection 24
  • Constitution of Kenya, 2010Articles 22, 27(1), 36, 41(2)(c)

Cases cited (5)

  • Robert Kithinji Kiugu v AAA Growers Limited
    [2019] eKLR
  • Kenya Hotels & Allied Workers Union v Bidwood Suites Hotel Limited
    [2019] eKLR
  • Kenya Union of Domestic Hotels, Educational Institutions and Allied Workers v MP Shah Hospital
    [2018] eKLR
  • Kenya Union of Journalists v Nation Media Group Limited & another
    [2013] eKLR (Industrial Court Cause 799 of 2010)
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (claim for unfair termination under section 49 of the Employment Act, 2007)

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 Hotels and Allied Workers Union v Panari Hotel; Gitau (Interested Party) (Cause 218 of 2019) [2024] KEELRC 1076 (KLR)", Case Analysis (2024). Memorandum of Claim dated 5th April 2019 (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1076/eng@2024-05-08

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