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ELRCDismissedCause No. 48 of 2019· [2021] KEELRC 1426 (KLR)

Kenya Hotels & Allied Workers Union v Hotel Waterbuck Limited & Kudheiha Workers (Interested Party) [2021] KEELRC 1426 (KLR)

Employment and Labour Relations Court of Kenya at Nakuru
27 January 2021
MMM. Mbaru
2,534 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a union's claim because it sued before finishing the required conciliation process, so disputes must follow the statutory steps first.

What this practically means

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Executive summary

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The claimant union sued Hotel Waterbuck Limited seeking orders compelling the respondent to sign a recognition agreement and to deduct and remit trade union dues under sections 54 and 48 of the Labour Relations Act, 2007, contending that it had recruited 82 of the respondent's 120 unionisable employees (69.5%, a simple majority) after the employees resigned from the interested party union, KUDHEIHA Workers. The respondent opposed, relying on its existing recognition agreement with KUDHEIHA dated 5th November 2012 and subsisting CBAs covering all unionisable employees, including one for 2017/2019. KUDHEIHA raised res judicata (citing the claimant's earlier Nakuru Cause No. 10 of 2019) and argued the resignation letters did not conform to section 48 of the LRA. Both the respondent and the interested party submitted the suit was premature because the claimant had reported the dispute to the Minister but abandoned conciliation before a certificate issued. The court held the earlier suit, having been struck out, could not found res judicata; however, having invoked conciliation, the claimant could not circumvent that process, and filing suit before a certificate of unresolved dispute under sections 62 and 69 of the LRA was an abuse of process. The court further observed that the claimant's generic resignation letters dated 6th July 2018 fell short of section 48(8) of the LRA, and that section 52 permits direct payment of dues without disturbing existing recognition. The suit was dismissed with costs to the respondent and the interested party.

Key legal issues

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01

Res judicata

Holding

The earlier suit (Nakuru Cause No. 10 of 2019) was struck out and obliterated and cannot found a plea of res judicata against the present suit

Reasoning

The court retrieved the earlier cause and found that it had been struck out on 8th July 2019, ending definitively. Because that suit was obliterated and could not be revived, it could not constitute a prior determination of the same matter for res judicata purposes.

p. 3
02

Prematurity - failure to exhaust conciliation

Holding

The suit is premature and an abuse of process because the claimant reported the dispute to the Minister and invoked conciliation but moved the court before the conciliator issued a certificate under sections 62 and 69 of the LRA

Reasoning

Section 62 of the LRA requires a trade union to report a dispute to the Minister, and a conciliator should issue a Certificate of Conciliation or Unresolved Dispute under section 69. Filing suit before the relevant certificate, after having invoked conciliation, is an abuse of process; the suit cannot run parallel with the conciliation process.

p. 3
03

Recognition and deduction of union dues where a rival union holds recognition

Holding

Even if the suit were properly before the court, section 54 recognition is regulated by law; where a union recruits members from a union enjoying recognition and a running CBA, section 48 governs, and valid resignation notices must be served on the employer

Reasoning

There was a valid recognition agreement and CBAs between the respondent and the interested party. The claimant's generic resignation letters dated 6th July 2018 did not conform to section 48(8) of the LRA, which requires the notice to be served on the employer and forwarded to the trade union. Direct payment of dues under section 52 remains available without compromising the existing recognition.

p. 4

Legal principles established

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  • Once a party opts for conciliation as a mode of dispute resolution, that process must be exhausted before moving the court
  • A resignation notice from a trade union must be served on the employer, who must forward a copy to the affected trade union under section 48(8) of the LRA

Court orders

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  1. 1.The suit is found premature and is dismissed
  2. 2.Costs to the respondent and the interested party
Jurisdiction invoked
Jurisdiction under the Labour Relations Act, 2007 dispute-resolution framework (sections 62, 69, 73 and 74) as an employment and labour relations cause

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 Hotels & Allied Workers Union v Hotel Waterbuck Limited & Kudheiha Workers (Interested Party) [2021] KEELRC 1426 (KLR)", Case Analysis (2021). Cause No. 48 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1426/eng@2021-01-27

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