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ELRCDismissedCause No. 1748 of 2013

Kenya Union of Hair & Beauty Salon Workers v Sana Industries Co. Limited [2018] KEELRC 49 (KLR)

Industrial Court of Kenya
20 December 2018
2,054 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court threw out a union's claim against Sana Industries because it was vague, lacked evidence, and proved nothing about the affected workers.

What this practically means

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Executive summary

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This consolidated cause (lead case Cause No. 1748 of 2013, consolidated with Cause No. 2053 of 2013) was brought by the Kenya Union of Hair and Beauty Salon Workers against Sana Industries Co. Limited. The union claimed that the respondent harassed and intimidated unionisable employees through frequent suspensions, victimised and demoted two union representatives (Joseph Kangethe Kamande, Secretary, and Alexander Mainah Onsongo, Chairperson), and unlawfully suspended/terminated them on 9th October 2013 despite a recognition agreement and a CBA registered on 10th October 2013. The union sought orders compelling the respondent to respect the Recognition Agreement and CBA, to reinstate the representatives as machine attendants, to refrain from harassment and victimisation, and to pay costs. The lead claim was undefended, but the respondent filed a defence in the consolidated matter denying the claim, asserting it was premature, amorphous and failed to disclose a cause of action, and that the agency fee issue had been resolved by consent. The court framed three issues: frivolousness and abuse of process, entitlement to relief, and costs. Finding the claim muddled, unparticularised and unsupported by evidence of the grievants' employment or union membership - and the claimant having filed no submissions - Marete J dismissed the claim as frivolous and an abuse of the process of court, holding the claimant disentitled to relief. Each party was ordered to bear its own costs. Judgment dated and signed 20th December 2018 by Marete J and delivered by Maureen Onyango, Principal Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the pleadings are frivolous and abuse of the process of court?
  2. 2.Whether the claimant is entitled to the relief sought?
  3. 3.Who bears the costs of this claim?

Key legal issues

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01

Whether the pleadings are frivolous and an abuse of the process of court

Holding

Yes. The claim was muddled, failed to particularise the causes of action or the affected individuals, and did not disclose a genuine matter for litigation.

Reasoning

The court noted the claimant filed no written submissions and failed to particularise which provisions of the CBA were unimplemented, the dates of employment, or evidence of union membership of the named individuals. Relying on respondent's authorities on frivolous, vexatious and embarrassing pleadings and the purpose of pleadings, the court found the claim so muddled it could not stand as a genuine litigious exercise.

p. 3
02

Whether the claimant is entitled to the relief sought

Holding

No. Having presented a claim wanting in form and substance, the claimant was disentitled to the relief sought.

Reasoning

The relief flowed from the finding on the first issue. Because the claim was dismissed as frivolous and abusive of court process, no reinstatement, restraint against harassment, or compliance order could issue. The court also noted the agency fee issue had been resolved by consent recorded in court, and any attempt to reopen it would be an abuse of process.

p. 3

Legal principles established

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  • A claim so wanting in form and substance that it does not disclose a genuine litigious exercise is frivolous and an abuse of the process of court and will be dismissed
  • A union claiming on behalf of grievants must particularise the claims and prove employment and union membership of the individuals concerned

Court orders

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  1. 1.The claim is dismissed for lack of form and merit, being frivolous and an abuse of the process of court
  2. 2.Each party to bear their own costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

MO
Maureen OnyangoPRINCIPAL JUDGE
majority
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court over trade disputes (Memorandum of Claim under the Labour Relations Act framework)
Consolidated with
Cause No. 2053 of 2013

Relief refused

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Order compelling the respondent to respect the Recognition Agreement and CBA and follow their procedures

Claim dismissed as frivolous and an abuse of process; the claimant was disentitled to relief

p. 3

Reinstatement of the union representatives as machine attendants

Claim dismissed as frivolous and an abuse of process; no evidence substantiating the grievances

p. 3

Order restraining harassment, intimidation or victimisation of representatives/workers

Claim dismissed as frivolous and an abuse of process

p. 3

Costs of the suit

Each party ordered to bear own costs

p. 3

Costs

Each party to bear their own costs of the claim

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I am therefore inclined to dismiss the claim for lack of form and merit. It is frivolous and an outright abuse of the process of court.
p. 3dismissal for frivolous pleadings
I am therefore inclined to dismiss the claim with orders that each party bears their cost of the same.
p. 3final orders - dismissal and costs
Having presented a claim so wanting in form and substance, she becomes disentitled to the relief sought.
p. 3disentitlement to relief
There is no proof that the claimants are members of the union. No iota of evidence suggests on what basis the union has filed this claim on behalf of the Grievants.
p. 3burden of proving union membership and capacity to sue for grievants

Issues in the judgment

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minor

The judgment contains an incomplete sentence appearing to omit the word 'no': the disposition on the first issue reads 'This matter is so muddled up as to make any sense,' which on its face contradicts the holding that the matter is muddled; context indicates the word 'no' was intended

minor

The coram is unusual: the judgment is dated and signed by Marete J but also records that it was 'Delivered and signed' by Maureen Onyango, Principal Judge, on the same date, without explanation

minor

The names of the grievants are inconsistently spelled within the judgment (Kamande/Onsongo vs Ongong'o)

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 Hair & Beauty Salon Workers v Sana Industries Co. Limited [2018] KEELRC 49 (KLR)", Case Analysis (2018). Cause No. 1748 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/49/eng@2018-12-20

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