Kenya Union of Domestic, Hospital, Educational Institutions and Allied Workers Limited v Board of Management Murang'a High School

The Court found that friction began with the Union's entry into the workplace, but the respondent went to great lengths to accommodate non-teaching staff despite administrative changes. Staff who resumed work suffered no loss of privilege. Meetings were held with staff, the respondent and Union representatives to keep the peace, satisfying section 41. The claimants, advised by the Union, chose not to co-operate and defied a court order of 17th February 2016 to resume work, thereby negotiating themselves out of employment.

The claimants stayed away from work from February 2016 despite a court order maintaining status quo, yet claimed dues up to 2018. They were also said to have been paid remuneration while the matter was in court, which they did not deny, and they did not specify the extent of their claim separate from amounts already paid. Claims for salary and underpayment when not working would constitute unjust enrichment and cannot stand.

No evidence was brought forward showing which Union dues were deducted and never forwarded to the appellant. The trial court had noted mischief in the manner the appellant filed numerous forms filled with errors in member numbers and signatures and did not state what Union arrears it was claiming. The appellate Court agreed the claim was not made out.

The respondent did not file a cross-appeal on the dismissal of its counterclaim. It paid the counterclaimed amounts after an agreement during the pendency of the suit, believing it had paid correctly calculated dues. Having paid under the strength of a court order and in good faith, it could not be heard to seek a refund or renege on that settlement.