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ELRCDismissedMemorandum of Claim dated 11th April 2022

Kenya Union of Road Contractors & Civil Engineering Workers v China Railway No. 5 Engineering Group Limited (Employment and Labour Relations Cause E233 of 2022) [2024] KEELRC 263 (KLR)

Employment and Labour Relations Court
15 February 2024
3,413 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a trade union's dues and house allowance claim because it filed suit before conciliation was finished and never proved its numbers.

What this practically means

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Executive summary

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The Claimant trade union sued the Respondent employer alleging failure to deduct and remit trade union dues and failure to pay housing allowance to Samuel O. Ademba and 394 others. The Claimant sought orders directing deduction and remittance of monthly union dues, payment of unremitted dues from September 2021, compliance with the Labour Institutions (Building and Construction) Wages Order 2012, and payment of statutory minimum house allowance of 20% of the rate of pay, plus costs. The Respondent denied the claims, asserting it had been remitting dues for 197 verified members as recommended by the Conciliator, that house allowance was settled in a tripartite agreement of 25th January 2022, and that the suit was premature and the union lacked locus standi absent a recognition agreement. The court first found, following Rika J in Kenya Shoe & Leather Workers Union v Falcon Tanners and the Court of Appeal in Modern Soap Factory, that the union had locus standi to sue for its members despite the absence of a recognition agreement or CBA. On the merits, however, the court found the Claimant had abandoned conciliation and filed suit less than two weeks after the Conciliator's last proposal of 28th March 2022, without the certificate of unresolved dispute required by Section 69 of the Labour Relations Act or the report, minutes and affidavit required by Rule 5 of the ELRC (Procedure) Rules, 2016. The Claimant also failed to avail the Ministerial Order under Section 48 and gave inconsistent figures for its membership (300, 203, 1644, against the Conciliator's 197), and did not plead or prove unremitted dues as special damages. The house allowance claim had been concluded by the 25th January 2022 conciliation agreement with no evidence of breach. The suit was dismissed as premature and unsustainable, with parties left at liberty to conclude the verification exercise through the Labour Officer, and each party bearing 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.Whether the Claimant union has locus standi to agitate on behalf of its members in a court of law
  2. 2.Whether the Claimant's suit is premature
  3. 3.Whether the claim for house allowance is sustainable

Key legal issues

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01

Whether the Claimant union has locus standi without a recognition agreement or CBA

Holding

Yes - a trade union may sue on behalf of its members even without a recognition agreement or CBA

Reasoning

The court preferred Rika J's reasoning in Kenya Shoe & Leather Workers Union v Falcon Tanners Ltd and the Court of Appeal's decision in Modern Soap Factory, holding that a recognition agreement under Section 54(1) of the Labour Relations Act is for collective bargaining, not a precondition to court representation. Section 22 of the ELRC Act, 2011 permits representation by union officials, and Article 41 read with Article 258(2)(d) of the Constitution protects associational standing.

p. 5
02

Whether the suit was premature

Holding

Yes - the suit was filed before conciliation was concluded and without the statutory certificate or supporting affidavit

Reasoning

The Conciliator's report of 28th March 2022 showed the conciliation process on deduction of union dues was ongoing and verification incomplete, with only 197 employees verified. The Claimant filed suit less than two weeks later without a certificate of unresolved dispute under Section 69 of the Labour Relations Act or the affidavit required by Rule 5(2) of the ELRC (Procedure) Rules, 2016, breaching mandatory procedural requirements.

p. 7
03

Whether the Claimant established entitlement to union dues

Holding

No - the Claimant did not avail the Ministerial Order under Section 48 of the Labour Relations Act and did not plead or prove the dues claimed

Reasoning

Section 48 of the Labour Relations Act requires a Ministerial Order and service of a Form S notice before an employer must deduct dues. The Claimant referenced Legal Notice 159 but neither dated it nor availed a copy. The number of grievants varied inconsistently across pleadings and submissions, and the unremitted dues, being special damages, were neither specifically pleaded nor proved.

p. 7
04

Whether the claim for house allowance was sustainable

Holding

No - the issue was concluded by the conciliation agreement of 25th January 2022

Reasoning

The parties signed a conciliation report on 25th January 2022 in which the Respondent undertook to comply with the Labour Institutions (Building and Construction) Wages Order, 2012, and confirmed its resolve by letter dated 12th February 2022. No evidence showed breach. The Claimant produced no evidence of salaries paid or house allowance due, and the later Conciliator's report excluded house allowance as an issue in dispute.

p. 7

Legal principles established

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  • A trade union has locus standi to sue on behalf of its members in the ELRC even in the absence of a recognition agreement or CBA
  • A statement of claim must be accompanied by the Conciliator's report, minutes and a certificate of conciliation, or an affidavit explaining the absence of a certificate
  • A suit filed before the Conciliator has certified the dispute unresolved is premature

Court orders

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  1. 1.The suit was dismissed as prematurely filed and unsustainable
  2. 2.Parties at liberty to engage the Labour Officer for purposes of concluding the verification exercise
  3. 3.Each party to bear their own costs

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 jurisdiction over trade disputes under the Labour Relations Act, 2007 and the Employment and Labour Relations Court Act, 2011

Relief refused

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Order directing the Respondent to deduct and remit monthly union dues of its members in the shared check-off forms

Suit filed prematurely before the Conciliator issued a certificate of unresolved dispute; Claimant failed to produce the Ministerial Order under Section 48 of the Labour Relations Act and failed to specifically plead and prove the dues claimed

p. 7

Order directing payment of all unremitted union dues from September 2021

Unremitted dues are special damages which must be specifically pleaded and proved; the figures given varied inconsistently (300, 203, 1644, 197)

p. 5

Order directing compliance with the Building and Construction Wages Order 2012 and payment of statutory minimum house allowance of 20%

The issue of house allowance was concluded by the tripartite conciliation agreement of 25th January 2022 and no evidence showed breach

p. 7

Costs of the suit

Each party directed to bear own costs

p. 7

Costs

Parties shall bear their own costs.

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.

In the upshot, it is the finding of the court that the instant suit was filed prematurely and is thus unsustainable at this stage and is accordingly dismissed.
p. 7Disposition - dismissal for prematurity
Parties shall bear their own costs.
p. 7Costs order
The parties are however at liberty to engage the Labour Officer for purposes of concluding the verification exercise.
p. 7Liberty to conclude verification exercise
There is no legal obscurity on the right of representation of the employees by the trade union.
p. 4Trade union right of representation (adopted from Rika J)
the amount claimed as union dues which are special damages which must be specifically pleaded and proved by evidence.
p. 5Special damages must be specifically pleaded and proved

Issues in the judgment

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minor

The full names of the parties and the precise case number do not appear in the extract; the parties are referred to only as 'the Claimant union' and 'the Respondent' and the suit is identified only by its Memorandum of Claim date

minor

The judgment does not state the case number of the suit, only the date of the Memorandum of Claim

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Road Contractors & Civil Engineering Workers v China Railway No. 5 Engineering Group Limited (Employment and Labour Relations Cause E233 of 2022) [2024] KEELRC 263 (KLR)", Case Analysis (2024). Memorandum of Claim dated 11th April 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/263/eng@2024-02-15

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