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ELRCDismissedNot stated in judgment· [2024] KEELRC 2728 (KLR)

Kenya Union of Commercial Food and Allied Workers v Nanak Engineering Works Limited (Employment and Labour Relations Cause E006 of 2024) [2024] KEELRC 2728 (KLR)

Employment and Labour Relations Court
7 November 2024
MOMAUREEN ONYANGO
1,785 words in judgment
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The bottom line

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Kenya's Employment Court dismissed an employer's attempt to strike out a union's case over a name typo, confirming typos don't defeat justice.

What this practically means

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Executive summary

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The claimant union filed suit against the respondent employer together with a notice of motion seeking interim orders restraining the respondent from victimising its members and directing deduction and remittance of union dues under check-off forms. The respondent filed a preliminary objection on six grounds: that no legal entity known as Nanak Engineering Works Ltd exists, that the respondent's sector falls outside the claimant's constitution, that the claimant lacks locus, that it is not qualified to recruit from the engineering industry, that its recruitment is ultra vires its constitution and a nullity, and that the claim is incompetent and an abuse of process warranting striking out with costs. The court directed the parties to proceed on the objection by written submissions. Relying on Mukisa Biscuits Manufacturing Company Ltd v West End Distributors, the judge held that a preliminary objection must be a pure point of law argued on assumed facts. The court examined the certificate of registration and the claimant's demand letter of 24th July 2023 and found the misdescription of the respondent as 'Nanak Engineering Works Limited' was a typographical error that did not go to the root of the matter, consistent with Article 159(2)(d). On locus, the court considered Rule 5 of the claimant's constitution and section 54(8) of the Labour Relations Act, noting the memorandum of claim describes the respondent as a shop selling engineering appliances and spare parts, which if true would place it within Rule 5(a)(vi); the respondent filed no reply to the memorandum. The factual question required evidence and was unsuitable for a preliminary objection. The objection was dismissed with costs in the cause.

Key legal issues

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01

Whether the misnaming of the respondent as 'Nanak Engineering Works Limited' renders the claim fatally defective

Holding

No - it was a typographical error that does not go to the root of the matter

Reasoning

The certificate of registration shows the business is registered as Nanak Engineering Works without 'Limited'. The claimant's letter of 24th July 2023 addressed the respondent by its correct name, showing the misdescription was a typographical error which the court would not allow to defeat substantive justice under Article 159(2)(d).

p. 3
02

Whether the claimant union has locus to recruit the respondent's employees given its constitution

Holding

Not determinable on a preliminary objection; it requires proof by evidence

Reasoning

Rule 5 of the claimant's constitution limits membership to specified sectors including retail and wholesale outlets. The memorandum of claim describes the respondent as a shop selling engineering appliances and spare parts, which, if true, falls under Rule 5(a)(vi). The respondent filed no reply to the memorandum, and the factual question of the respondent's sector requires evidence, unsuitable for a preliminary objection.

p. 5

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained

Court orders

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  1. 1.The preliminary objection is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 41(2)(c)
  • Labour Relations Act, 2007Section 4(1)(a) and (b)
  • Labour Relations Act, 2007Section 54(8)

Cases cited (2)

  • Mukisa Biscuits Manufacturing Company Ltd vs West End Distributors
    (1969) EA 696
  • Kenya Plantations & Agricultural Workers Union v Kenya Chemical & Allied Workers Union & 2 others
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (Article 41 and the Labour Relations Act, 2007 invoked in submissions)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Commercial Food and Allied Workers v Nanak Engineering Works Limited (Employment and Labour Relations Cause E006 of 2024) [2024] KEELRC 2728 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2728/eng@2024-11-07

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