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ELRCStruck OutELRC Cause (Nakuru) - memorandum of claim dated October 20, 2020 (number not stated in judgment)

Kenya Engineering Workers Union v Rift Valley Engneering Limited (Cause E011 of 2020) [2022] KEELRC 4103 (KLR)

Employment and Labour Relations Court
29 September 2022
3,642 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan employment claim collapsed entirely because the company was sued under the wrong registered name, showing why verifying names matters.

What this practically means

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Executive summary

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The Kenya Engineering Workers Union filed a memorandum of claim dated October 20, 2020 on behalf of grievants, seeking declarations that a lockout, redundancy, termination and dismissal were unfair and unlawful, reinstatement without loss of benefits, or in the alternative terminal dues including notice pay, gratuity, 12 months' compensation, accrued leave, unpaid salaries, overtime and certificates of service, invoking the CBA and section 49(1) of the Employment Act. The respondent denied the claim and filed a counter-claim, raising preliminary issues including an alleged unlawful strike, lack of cause of action, and desertion, and later a preliminary objection on res judicata, the union's representation by a non-advocate official (Mr Makale), and the union's alleged disqualification from audience due to unpaid costs in Nakuru ELRC No 61 of 2018. The court first found that the respondent named in the pleadings, Rift Valley Engineering Ltd, is not a legal entity; the certificate of incorporation established the proper name as Rift Valley Engineering Works Limited, which had entered appearance under protest and was therefore not a legally joined party. Both the claim and the counter-claim were struck out as improperly before the court, the claim not being salvageable under order 1 rule 9 of the Civil Procedure Rules. The court went on to hold, for completeness, that the cause was not res judicata for want of evidence of a prior determination on merit, that non-payment of prior costs did not deny the union audience, and that while a trade union may file representative suits for its members, its unqualified officials cannot exercise the rights and privileges of advocates. Each party was ordered to bear its own costs.

Questions the Court framed

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

  1. 1.Is the respondent a proper party in this cause, both in the claim and the counter-claim?
  2. 2.Is this cause res judicata?
  3. 3.Does the claimant possess the legal capacity to file this cause for and on behalf of the grievants named therein and to appear in court to prosecute the same?
  4. 4.Should the claimant be given audience by the court in this matter in view of the pending unpaid costs in Nakuru ELRC No 61 of 2018?
  5. 5.Costs

Key legal issues

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01

Whether the respondent was a proper party to the cause

Holding

The claim and counter-claim were struck out because the entity named in the pleadings (Rift Valley Engineering Ltd) was not the legally registered entity; the entity that entered appearance under protest was not a party.

Reasoning

The respondent filed a certificate of incorporation showing its registered name is Rift Valley Engineering Works Limited. Section 83 of the Evidence Act makes such a certificate conclusive evidence of the company's name. The claimant never responded, disputed the certificate, or sought to amend the pleadings. Since the named respondent was not a legal entity party, there was no proper suit; the cause could not be salvaged under order 1 rule 9 of the Civil Procedure Rules as pleadings had closed. The counter-claim, being a suit of itself, also fell.

p. 4
02

Whether the cause was res judicata

Holding

Not res judicata - no evidence that Nakuru ELRC No 61 of 2018 was heard and determined on merit.

Reasoning

The respondent produced only pleadings, a certificate of costs and warrants of attachment, not the proceedings or judgment in the earlier cause. Section 7 of the Civil Procedure Act requires that the former suit was between the same parties and the issues conclusively heard and determined on merit. No judgment and decree were availed. The court noted, hypothetically, that had the respondent been a proper party, the claim still would not have been res judicata.

p. 4
03

Whether a trade union may file and prosecute a claim for its members, and whether its officials may act as advocates

Holding

A union may file a representative suit in its own name for its members, but its officers/officials, unless qualified advocates, cannot exercise advocates' rights and privileges or appear for a litigant in a cause where the union is not a party.

Reasoning

Section 22 of the Employment and Labour Relations Court Act and section 2 of the Labour Relations Act permit unions to represent members, and Modern Soap Factory confirmed representative suits. However, section 22 does not elevate union officials to advocate status; the Advocates Act reserves legal practice to qualified advocates. An official may appear only for the union as party, as a recognised agent under order 9 of the Civil Procedure Rules, and cannot lead witnesses like an advocate. Objections to such representation are best raised at hearing.

p. 6
04

Whether non-payment of costs in a prior cause bars a party's audience

Holding

Ground failed - no nexus and no authority supporting denial of audience for unpaid costs in a different matter.

Reasoning

The respondent argued the union should have no audience because it had not paid costs of Kshs 149,010 awarded in Nakuru ELRC No 61 of 2018. The court found no law or binding precedent supporting the position; the respondent's remedy is to pursue the costs through available legal avenues. The ground was unsubstantiated and unsupported and had to fail, particularly as the respondent was found not to be a properly joined party.

p. 5

Legal principles established

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  • A trade union has locus standi to institute claims in its own name for and on behalf of its members, with or without a recognition agreement.
  • An officer or official of a trade union, unless a duly qualified advocate, cannot enjoy the rights and privileges of an advocate or prosecute a case on behalf of a litigant; they may appear only for the union which is itself a party.
  • A certificate of incorporation is conclusive evidence of the registered name of a company.

Court orders

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  1. 1.The claim is struck out for being improperly before the court as the respondent named in the pleadings is not a legal party
  2. 2.The counter-claim is struck out for being improperly before the court
  3. 3.Each party shall bear own costs of the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court Act, section 22; Employment and Labour Relations Act

Relief refused

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Declaration that lockout, redundancy, termination and dismissal were unfair, reinstatement of grievants, and terminal dues (notice pay, gratuity, 12 months' compensation, leave, salaries, certificate of service)

The entire claim was struck out because the respondent named in the pleadings (Rift Valley Engineering Ltd) is not a legally joined party; certificate of incorporation shows the proper name is Rift Valley Engineering Works Limited and no amendment was sought

p. 4

The respondent's counter-claim

Rift Valley Engineering Works Limited, having disowned the name in the pleadings, is not a party to the cause and cannot pursue a counter-claim in it

p. 4

Respondent's plea of res judicata

No judgment, decree or evidence availed to show Nakuru ELRC No 61 of 2018 was heard and determined on merit as required by section 7 of the Civil Procedure Act

p. 4

Respondent's plea that the claimant be denied audience for unpaid costs in Nakuru ELRC No 61 of 2018

No binding authority or law was cited linking non-payment of costs in a separate matter to loss of audience in this cause

p. 5

Costs

Each party shall bear own costs of this cause.

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.

As it stands the respondent who entered appearance under protest is not legally a party to this cause and consequently there is no cause to be heard against it before this court.
p. 4proper party / misjoinder
For all the reasons stated above this cause and the counter-claim are struck out and each party is ordered to meet own costs.
p. 7final orders - striking out claim and counter-claim
an oficer or oficial of a trade union or employers organisation, unless a duly qualified advocate, does not and cannot enjoy the same rights and privileges available to a duly qualified advocate under the Advocates Act (Cap 16)
p. 7trade union representation and Advocates Act
a trade union has locus standi to institute claims, in its name, for and on behalf of its members
p. 6trade union locus standi
had the respondent been a proper party in this instant cause, but this court has found above that it is not, this cause would not have been res judicata.
p. 5res judicata not established

Issues in the judgment

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minor

The case number of the instant cause is not stated anywhere in the judgment

minor

The certificate of incorporation exhibit number is redacted/absent in the judgment text

minor

The judgment refers to a 'preliminary objection' by the claimant dated March 15, 2022 based on section 90 of the Employment Act, but no analysis or determination of that objection appears in the judgment

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 Engineering Workers Union v Rift Valley Engneering Limited (Cause E011 of 2020) [2022] KEELRC 4103 (KLR)", Case Analysis (2022). ELRC Cause (Nakuru) - memorandum of claim dated October 20, 2020 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4103/eng@2022-09-29

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