Kenya Shipping Clearing Freight Logistics and Warehouses Workers Union v Wilham (K) Ltd & another (Employment and Labour Relations Cause E1074 of 2021) [2023] KEELRC 3202 (KLR)
The bottom line
#Kenya's Employment Court dismissed a union's redundancy claim, confirming unions can sue for members without a recognition agreement, but found no job losses occurred.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant has locus standi to institute this suit on behalf of the grievants
- 2.Whether the restructure of the Respondents rendered their employees redundant under Section 40 of the Employment Act
Key legal issues
#Whether the Claimant union had locus standi to sue on behalf of the grievants without a recognition agreement or CBA
The Claimant had locus standi as it represented grievants who were members and employees of the Respondents; a recognition agreement is not a prerequisite for representation in court
Applying Modern Soap Factory v Kenya Shoe and Leather Workers Union and Article 41 of the Constitution, the court held that a registered union with constitutional mandate may represent members in court. Recognition agreements regulate collective bargaining, not court representation. Section 22 of the Employment and Labour Relations Act permits representation by a union official, so Mr Ongera was properly mandated.
Whether the restructuring/transfer of the Respondents' business to Shalimar Flowers (K) Ltd rendered the employees redundant under Section 40 of the Employment Act
No redundancy occurred; employees continued in employment with the same roles, salary and benefits, and signed new contracts voluntarily
Applying the statutory definition of redundancy in Section 2 of the Employment Act, the court found no loss of employment, abolition of office or termination at the employer's initiative. CW1 retained her supervisor, role, responsibilities, salary and benefits; contracts were signed voluntarily after consulting the union, and the companies shared the same directors and shareholders.
Whether the witness statements of grievants who gave no authority to the testifying witness could be accepted
The court accepted the witness statements in the interest of justice under the proviso to Section 21 of the ELRC (Procedure) Rules, despite absence of authority
Although the court was disturbed that the claimant witness produced no authority to act for the other grievants, it invoked the proviso to Section 21 of the Employment and Labour Relations Court (Procedure) Rules to accept the statements so that justice would be done.
Legal principles established
#- A registered trade union whose constitution so empowers has standing to institute a claim and represent its members in court even absent a recognition agreement with the employer
- A recognition agreement is not the basis upon which a trade union represents its members in court; the two roles are distinct
Court orders
#- 1.The claim for redundancy dues for four years for the respective employees is dismissed
- 2.Each party is ordered to pay their respective costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 22 of the Employment and Labour Relations Act (employment and labour relations jurisdiction); Section 21 of the Employment and Labour Relations Court (Procedure) Rules invoked on witness statements
Relief refused
#Claim for redundancy dues for four years for the respective employees
No redundancy was declared as employees continued to work with no job losses; the claim was not proved
Costs
Each party to pay their respective costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is not in dispute that the Claimant union represents the grievants who are/were employees of the Respondents herein and members of the union, therefore, the Claimant has locus standi.
The court finds there was no redundancy declared on the employees as they continued to work and there were no job losses. The claim for redundancy dues for four years for the respective employees is not proved and is not merited. The claim is therefore dismissed and each party is ordered to pay their respective costs.
Issues in the judgment
#Judgment does not state the case number or neutral citation anywhere in the text provided
The names of the Respondents are inconsistently identified in the judgment - the claim describes the employer entities as Mahee Flowers Ltd, Mwanzi Flowers Ltd, Wilham (K) Ltd and East African Growers, while the heading refers simply to Respondents and the testimony refers to Shalimar Flowers entities
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Shipping Clearing Freight Logistics and Warehouses Workers Union v Wilham (K) Ltd & another (Employment and Labour Relations Cause E1074 of 2021) [2023] KEELRC 3202 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3202/eng@2023-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.