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IndustrialDismissedNot stated in the judgment· [2014] KEIC 88 (KLR)

Kenya Union of Commercial Food & Allied Workers Union v Doshi Iron Mongers Ltd & Cello Thermoware Ltd (Cause 167 of 2014) [2014] KEIC 88 (KLR)

Industrial Court (Employment and Labour Relations Court)
10 December 2014
OMO. N. Makau
435 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The respondents filed two separate Notices of Motion dated 29 May 2014 seeking to strike out the claimant's suit on three grounds: that the respondents are separate legal persons who should not be sued jointly; that the claimant was employed by the respondents on separate occasions; and that the claimant lacked locus standi. The Motions were supported by affidavits and opposed by the affidavit of Mr. John O. Owiyo sworn on 3 July 2014, who argued that any anomaly in joinder had been cured by leave to amend granted on 3 July 2014 describing the respondents as independent parties, and that both respondents were necessary because the circumstances of the grievant's transfer between them were unclear. Before the court, Mr. Attancha (holding brief for Mrs. Kibe) relied only on the grounds and supporting affidavit, while Mr. Owiyo submitted that the grievant was employed by the 1st Applicant by letter dated 2 February 2005 but that from May 2010 the 2nd respondent paid his salary, and that a Companies Registry search showed the companies share the same directors. The court found it undisputed that the grievant worked for either or both applicants, but that the circumstances, reasons and terms of the alleged move were unexplained; both respondents were therefore necessary parties. On locus standi, the court held the claimant could sue on behalf of members once conciliation by the Minister under the Labour Relations Act failed, a well settled principle. The court dismissed both Motions with costs.

Key legal issues

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01

Joinder of separate legal persons as defendants/respondents

Holding

The two respondents should remain as parties because the circumstances of the grievant's transfer between the related companies are unclear

Reasoning

It was not disputed that the grievant worked for either or both applicants. The reasons and terms of the alleged move from one company to the other were unexplained, and a Companies Registry search showed the companies share the same directors. Given the unclear transfer circumstances, both companies were necessary parties, and any anomaly in joinder had been cured by leave to amend granted on 3/7/2014.

p. 2
02

Locus standi of the claimant to sue on behalf of members

Holding

The claimant has locus standi once the dispute is not resolved through conciliation by the Minister under the Labour Relations Act

Reasoning

The applicants argued the claimant lacked locus standi. The court held that a claimant may institute suit on behalf of her members once conciliation by the Minister under the Labour Relations Act fails, describing this as a well settled principle in the jurisdiction. The suit therefore could not be struck out on this ground.

p. 2

Legal principles established

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  • A claimant union has the right to institute suit on behalf of its members once the dispute is not resolved through conciliation by the Minister under the Labour Relations Act
  • Where the circumstances under which an employee allegedly moved from one employer to a related company are unexplained, both companies are necessary parties and should remain enjoined

Court orders

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  1. 1.The 2 Motions dated 29/5/2014 are dismissed with costs
Jurisdiction invoked
Employment and labour relations jurisdiction under the Labour Relations Act (as invoked in submissions)

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 Union v Doshi Iron Mongers Ltd & Cello Thermoware Ltd (Cause 167 of 2014) [2014] KEIC 88 (KLR)", Case Analysis (2014). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/88/eng@2014-12-10

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