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ELRCDismissedCause No E535 of 2021· [2024] KEELRC 1553 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutons and Hospital Workers [KUDHEIHA] v B.O.M. Kilimani Primary School (Cause E535 of 2021) [2024] KEELRC 1553 (KLR)

Employment and Labour Relations Court
21 June 2024
JRJames Rika
1,703 words in judgment
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The bottom line

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Kenya's Employment Court dismissed a union's claim on behalf of teachers because it was poorly pleaded and unsupported by evidence, proving preparation matters as much as the grievance itself.

What this practically means

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Executive summary

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The Claimant Union filed a Statement of Claim on 5th July 2021 on behalf of 5 unnamed B.O.M Teachers employed by the Respondent school, alleging victimization on account of union membership, unfair and unlawful termination of contracts on 18th May 2021 (said to follow a government directive on the new curriculum), underpayment, non-remission of NHIF and NSSF deductions, and seeking reinstatement, damages, notices, salary arrears, redress of underpayments, service gratuity, recognition of the union and other omnibus remedies. The Respondent denied knowledge of the teachers' union membership, asserted compliance with statutory obligations, and prayed for dismissal with costs. Simon Manyengo testified for the Claimant; Board Chair Justus Namiti testified for the Respondent. The Court held that the Claim was very poorly pleaded and in disregard of Rule 5 of the ELRC (Procedure) Rules, 2016: it was undated, unaccompanied by the conciliator's report, minutes and certificate, and the grievants were not named in the pleadings. Only one grievant testified without proof of authority. No proper evidence of the contracts or of unfair and unlawful termination was adduced. The Court also held it could not convict the Respondent of a wage offence in civil proceedings, and declined prayers relating to recognition and fair labour practices as unsupported by any disclosed dispute. The claim was declined, with no order on costs. Judgment delivered electronically at Nairobi on 21st June 2024 by James Rika, Judge.

Key legal issues

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01

Adequacy of pleadings and compliance with Rule 5 of the ELRC (Procedure) Rules, 2016

Holding

The Claim was very poorly pleaded and did not comply with Rule 5; the Statement of Claim was undated and unaccompanied by the conciliator's report, minutes or certificate

Reasoning

The rules require a Statement of Claim signed by the authorized representative and supported by a conciliator's report with minutes, plus a conciliator's certificate under Section 69[a] of the Labour Relations Act. None accompanied the filing. The grievants were unnamed, the cause of action blurred, and prayers duplicated or unrelated to any disclosed dispute.

p. 3
02

Whether the Teachers' contracts were unfairly and unlawfully terminated

Holding

Not established; the Claimant failed to discharge its burden of proof

Reasoning

Only one alleged grievant testified without proof of authority to act for the others. No contracts were exhibited, terms and conditions of service were unknown, and the Respondent's Board Chair confirmed verbal engagements dependent on funds. The Court found no proper evidence of the contracts or of unfair and unlawful termination.

p. 4
03

Whether the Court can convict an employer of a wage offence in civil proceedings

Holding

It cannot; a criminal offence cannot be adjudicated in civil trade union/employer proceedings

Reasoning

Prayer (e) sought a finding that the Respondent be sighted for an offence under Section 19para 5 of the Employment Act. The Court held that before it are civil proceedings between a trade union and an employer, with no criminal case prosecuted, so no conviction or sentence could issue.

p. 4

Legal principles established

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  • A Statement of Claim under the ELRC (Procedure) Rules, 2016 must be signed by the authorized representative, dated, and accompanied by a conciliator's report, minutes of conciliation meetings and a conciliator's certificate issued under Section 69[a] of the Labour Relations Act
  • A trade union bringing a claim on behalf of members must plead the members' names, employment details and terms of service with reasonable certainty, and prove unfair termination with clear evidence

Court orders

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  1. 1.The Claim is declined
  2. 2.No order on the costs

Authorities

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Legislation

  • Employment and Labour Relations Court [Procedure] Rules, 2016Rule 5, Rule 5[b][ii]
  • Employment ActSection 41
  • Employment ActSection 19[5]
  • Labour Relations ActSection 69[a]
  • Electronic Case Management Practice Directions, 2020Practice Direction 6[2]
Jurisdiction invoked
First-instance employment and labour relations jurisdiction (Employment and Labour Relations Court); ELRC (Procedure) Rules, 2016 invoked

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, Hotels, Educational Institutons and Hospital Workers [KUDHEIHA] v B.O.M. Kilimani Primary School (Cause E535 of 2021) [2024] KEELRC 1553 (KLR)", Case Analysis (2024). Cause No E535 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1553/eng@2024-06-21

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