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ELRCOtherNot stated in judgment (directions also apply to Kakamega E009 of 2024)· [2024] KEELRC 2096 (KLR)

Kenya Union of Pre-Primary Education Teachers v County Public Service Board, Vihiga County Government & another; Salaries and Remuneration Commission (Interested Party) (Cause E007 of 2024) [2024] KEELRC 2096 (KLR)

Employment and Labour Relations Court
31 July 2024
JKJ. W. Keli
5,827 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court paused a teachers' union lawsuit, telling the union it must first prove it is properly registered and genuinely represents the employees it claims to speak for.

What this practically means

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Executive summary

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The County Government of Vihiga, respondent in a claim by the Kenya Union of Pre-primary Education Teachers (KUNOPET) concerning ECDE teachers, filed a Notice of Motion and preliminary objection dated 11th April 2024 seeking declarations that the union lacked legal capacity and locus standi for want of registration and a recognition agreement, that the strike was unlawful, and that the claim be struck out. The union opposed, asserting it was registered, had forwarded its registration certificate under a letter of 5th June 2023, had recruited 764 of 800 ECDE teachers, had benefited from union dues deductions, and had served a strike notice; it relied on a conciliation report recommending execution of a recognition agreement. The Court framed a single issue: whether the Claimant had locus standi. Applying Mukisa Biscuits, the Court held the preliminary objection raised disputed facts requiring ascertainment and was improper, dismissing it with no order as to costs. On the motion, the Court found serious issues on the legitimacy of the union: the registration certificate, union constitution, check-off forms and proof of dues deductions were never produced in Court, and the Claimant gave inconsistent membership figures. Recognising employees' constitutional and international-law rights to unionise and strike, the Court nonetheless held the union's locus standi had to be established first. It stayed further proceedings and directed the Claimant to produce, within 30 days, its certified registration certificate, evidence of officials and of Samuel Opiyo's authority, its constitution, and signed check-off forms with the deduction authorization, for mention on 17th September 2024, the orders also applying to Kakamega E009 of 2024.

Key legal issues

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01

Whether the Claimant union has locus standi to maintain the claim

Holding

Locus standi is unproven; the Court stayed proceedings and directed the Claimant to produce its registration certificate, constitution, officials' evidence and check-off forms within 30 days

Reasoning

The Claimant alleged it forwarded its registration certificate and check-off forms under a letter of 5th June 2023 but attached only the forwarding letter, not the documents. It gave inconsistent membership figures (764 vs 766) and no proof of deductions. Submissions are not pleadings. Since the union is custodian of its certificate and its registration status must be proved, the Court required documentary proof of locus before further proceedings.

p. 9
02

Whether the preliminary objection was a proper pure point of law

Holding

It was not; it raised facts requiring ascertainment and was dismissed with no order as to costs

Reasoning

Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the Court held that objections to registration, membership and service of strike notice required evidence to be ascertained and could not be determined as preliminary points of law. The objection was therefore improper and dismissed, while the substantive issues were handled through the Notice of Motion stay.

p. 11
03

Whether proof of union membership and dues deductions was established

Holding

No proof was produced; the Claimant failed to satisfy section 48 of the Labour Relations Act on trade union dues and did not produce the Legal Notice, check-off forms or the bi-product showing deductions

Reasoning

The Court held that union dues are the condition of membership and membership confers locus. The Claimant produced neither the Form S notice, the Legal Notice No. 160 of 2021, check-off forms, nor the bi-product the conciliator saw. The number of unionised employees and whether the simple-majority threshold for recognition was met remained doubtful.

p. 10

Legal principles established

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  • A union's locus standi to represent employees must be proved by production of its registration certificate, list of members and check-off forms; membership is the foundation of a union's capacity to sue and represent workers
  • A preliminary objection raising facts requiring ascertainment is improper under the Mukisa Biscuits test

Court orders

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  1. 1.The Notice of Preliminary Objection is dismissed with no order as to costs
  2. 2.Further proceedings in the suit are stayed pending determination of the application dated 11th April 2024
  3. 3.The Claimant to produce in Court: (a) certified copy of registration certificate by the Registrar of Trade Unions; (b) certified copy of registered officials of the national office and local branch and evidence of Samuel Opiyo as General Secretary; (c) certified copy of the registered union's constitution; (d) letter of authorization of Samuel Opiyo by the Secretary General to represent the Claimant; (e) signed check-off forms for employees of the 1st Respondent and letter of authorization to deduct
  4. 4.The Claimant to file and serve the documents within 30 days of the order
  5. 5.Mention on 17th September 2024 to confirm compliance and for final orders; the final order in the ruling vacated to 17th September 2024
  6. 6.The directions and orders to apply in the suit in Kakamega E009 of 2024

Authorities

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Legislation

  • Constitution of KenyaArticles 41, 50(1), 159(2)(d)
  • Civil Procedure ActSections 1A, 1B & 3A
  • Employment and Labour Relations Court RulesNot specified
  • Labour Relations ActSections 2, 4, 5, 12, 13, 14, 15, 19, 23, 25(1), 48, 50(8), 54, 59, 76
  • Labour Relations (General) RegulationsRegulation 3(1) and 8
  • International Covenant on Economic, Social and Cultural RightsArticle 8
  • ILO Convention 87 (1948); Convention 98 (1949)Right to Organize and Collective Bargaining
  • Legal Notice No. 160 of 2021Union dues collection order

Cases cited (8)

  • Kenya Electrical Traders & allied Workers Union v Kenya Electricity Transmissions Company Ltd
    (2021)
  • Law Society of Kenya v Commissioner of Lands and others
    Civil Case No. 464 of 2000 KLR 706
  • Kudheiha Workers V Board of Management Kihumbi-ini Secondary school
    (2015) EKLR
  • Communication Workers Union V Safaricom Limited
    (2014) eKLR
  • Kenya Shoe and Leather Workers Union V Modern Soap Ltd
    Civil Appeal No. 37 of 2019
  • Chongqing Construction Ltd v Kenya Union of Road Contractors
    Civil Cause no E774 of 2021
  • Kenya Tertiary and Schools Workers Union v Rocky Driving school
    (2018)
  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    [1969] EA 696
Jurisdiction invoked
Articles 50(1) and 159(2)(d) of the Constitution; Sections 1A, 1B & 3A of the Civil Procedure Act; Employment and Labour Relations Court Rules

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 Pre-Primary Education Teachers v County Public Service Board, Vihiga County Government & another; Salaries and Remuneration Commission (Interested Party) (Cause E007 of 2024) [2024] KEELRC 2096 (KLR)", Case Analysis (2024). Not stated in judgment (directions also apply to Kakamega E009 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2096/eng@2024-07-31

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