Kenya Hotels and Allied Workers Union v Panari Hotel; Gitau (Interested Party) (Cause 218 of 2019) [2024] KEELRC 1076 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant Union had locus standi to represent the Grievants
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
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.
Whether the Grievants were entitled to remain in service until age 60
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
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.
Whether the retirement of the Grievants at 55 was unfair termination
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
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.
Legal principles established
#- 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
#- 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.Dismissed the claim as devoid of any merit
- 3.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.