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ELRCDismissedCause No E811 of 2023· [2024] KEELRC 1117 (KLR)

Kenya Union of Commercial Food & Allied Workers v Nestle Kenya Limited; Owinyo & 7 others (Applicant) (Cause E811 of 2023) [2024] KEELRC 1117 (KLR)

Employment and Labour Relations Court
14 May 2024
NMNzioki Wa Makau
4,310 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that unhappy employees cannot overturn a settlement their union agreed to unless they prove fraud, mistake, or hidden information.

What this practically means

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Executive summary

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Eight employees of Nestle Kenya, Grievants in a suit filed by their union, sought by Notice of Motion dated 11th December 2023 to have a consent dated 16th November 2023 between the union and Nestle Kenya declared null and void before adoption, and for leave to amend the Statement of Claim through their own advocates, M/s Muthoni Njagi Advocates. They contended the union, the majority of whose 14 members were declared redundant under a reviewed CBA, settled the matter without their participation, breaching a fiduciary duty of fair representation and their rights under Articles 27, 41 and 50 of the Constitution. The Claimant Union countered that after an enhanced redundancy package was negotiated, the affected employees were paid in full and final settlement, and that the Applicants, being mere Grievants who never sought joinder as interested parties, could not take over the suit or amend pleadings. Nestle Kenya argued the union, as recognised representative, had implied authority to compromise the claim, the consent was binding as a contract, and the Applicants lacked locus standi. The court, Nzioki Wa Makau J, applied the Court of Appeal's holding in Kuwinda Rurinja that a consent may be set aside only on proof of fraud, non-disclosure of material facts or mistake. Dissatisfaction with the terms of the consent is not such a ground, and nothing showed undue influence or duress, nor was any liability of the union demonstrated. The application was dismissed with costs to the Claimant and Respondent.

Key legal issues

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01

Whether the consent of 16th November 2023 should be declared null and void

Holding

The application to vitiate the consent failed; no evidence of fraud, non-disclosure, mistake, undue influence or duress was adduced

Reasoning

The court noted the Applicants were represented by the Union throughout the negotiations and that the consent terms were implemented and the Applicants benefited from the enhanced redundancy package. Dissatisfaction with the terms of a consent is not among the recognized grounds for setting one aside, and the Applicants did not demonstrate how the Union was liable for any breach of duty.

p. 7
02

Whether the Applicants could take over the suit and amend the Statement of Claim without being enjoined as interested parties

Holding

The Applicants could not amend pleadings or change representation without seeking leave to be joined; no such application was before the court

Reasoning

The court accepted the position that the Applicants were Grievants in a suit filed by the Union, and that under the authorities an interested party cannot amend pleadings or frame its own issues. The Applicants neither sought joinder as interested parties nor sought to dislodge the Union, so their motion could not stand.

p. 7

Legal principles established

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  • Dissatisfaction with the terms of a consent is not a ground for setting it aside; fraud, non-disclosure of material facts or mistake must be demonstrated

Court orders

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  1. 1.The Applicants' Notice of Motion dated 11th December 2023 is dismissed
  2. 2.Costs of the application awarded to the Claimant and Respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 27
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)
  • Labour Relations Actsection 5
  • Employment Actsection 40
  • Civil Procedure Actsections 1A, 1B, 3A and 27(1)
  • Civil Procedure RulesOrder 1, rules 1 and 10(2)

Cases cited (12)

  • Francis Cheng'oli & 2 others v Kenya Universities Staff Union
    [2022] eKLR
  • Food and Allied Workers' Union v. Ngcobo
    [353/12] 2013 [ZASCA] 45 [28th March 2013]
  • Seth Panyako v Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers
    [2013] eKLR
  • David Bundi v Timothy Mwenda Muthee
    [2022] eKLR
  • Sammy Kanyi Kareithi v Barclays Bank of Kenya & 2 others; Ross Xavier Whitney (Applicant)
    [2021] eKLR
  • Kingori v Chege & 3 others
    [2002] 2 KLR 243
  • Francis Karioki Muruatetu and another v Republic
    (Petition Nos. 15 and 16 of 2015) [2017] eKLR
  • Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd
    [1982] KLR 485
  • Cheruiyot v Korir
    (Civil Appeal 131 of 2017) [2021] KECA 222 (KLR)
  • Kuwinda Rurinja Co. Limited v Kuwinda Holdings Limited & 13 others
    [2019] eKLR
  • Cleophas Omondi v Dismas Wamaya
    [2018] eKLR
  • Mumwanjesyi Development Ltd v Ali
    (Environment & Land Case 60 of 2016) [2022] KEELC 13816 (KLR)
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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 Commercial Food & Allied Workers v Nestle Kenya Limited; Owinyo & 7 others (Applicant) (Cause E811 of 2023) [2024] KEELRC 1117 (KLR)", Case Analysis (2024). Cause No E811 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1117/eng@2024-05-14

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