Kenya Union of Domestic, Hotels, Educational Institutons and Hospital Workers [KUDHEIHA] v B.O.M. Kilimani Primary School (Cause E535 of 2021) [2024] KEELRC 1553 (KLR)
The bottom line
#Kenya's Employment Court dismissed a union's claim on behalf of teachers because it was poorly pleaded and unsupported by evidence, proving preparation matters as much as the grievance itself.
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 Claim has properly been pleaded or is ill-advised
- 2.Whether the Claimant's members' contracts were unfairly and unlawfully terminated
- 3.Whether the various remedies pleaded are merited
Key legal issues
#Adequacy of pleadings and compliance with Rule 5 of the ELRC (Procedure) Rules, 2016
The Claim was very poorly pleaded and did not comply with Rule 5; the Statement of Claim was undated and unaccompanied by the conciliator's report, minutes or certificate
The rules require a Statement of Claim signed by the authorized representative and supported by a conciliator's report with minutes, plus a conciliator's certificate under Section 69[a] of the Labour Relations Act. None accompanied the filing. The grievants were unnamed, the cause of action blurred, and prayers duplicated or unrelated to any disclosed dispute.
Whether the Teachers' contracts were unfairly and unlawfully terminated
Not established; the Claimant failed to discharge its burden of proof
Only one alleged grievant testified without proof of authority to act for the others. No contracts were exhibited, terms and conditions of service were unknown, and the Respondent's Board Chair confirmed verbal engagements dependent on funds. The Court found no proper evidence of the contracts or of unfair and unlawful termination.
Whether the Court can convict an employer of a wage offence in civil proceedings
It cannot; a criminal offence cannot be adjudicated in civil trade union/employer proceedings
Prayer (e) sought a finding that the Respondent be sighted for an offence under Section 19para 5 of the Employment Act. The Court held that before it are civil proceedings between a trade union and an employer, with no criminal case prosecuted, so no conviction or sentence could issue.
Legal principles established
#- A Statement of Claim under the ELRC (Procedure) Rules, 2016 must be signed by the authorized representative, dated, and accompanied by a conciliator's report, minutes of conciliation meetings and a conciliator's certificate issued under Section 69[a] of the Labour Relations Act
- A trade union bringing a claim on behalf of members must plead the members' names, employment details and terms of service with reasonable certainty, and prove unfair termination with clear evidence
Court orders
#- 1.The Claim is declined
- 2.No order on the costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- First-instance employment and labour relations jurisdiction (Employment and Labour Relations Court); ELRC (Procedure) Rules, 2016 invoked
Relief refused
#Reinstatement of the Teachers and payment of damages, notices, salary arrears and redress of underpayments
The Claim was poorly pleaded, the Grievants not named, and no clear evidence established unfair or unlawful termination
A finding that the Respondent is guilty of a wage offence under Section 19[5] of the Employment Act
The proceedings are civil; no criminal case was prosecuted before the Court to permit conviction and sentence
Compulsion of the Respondent to refund/remith NHIF and NSSF deductions and pay service gratuity
Not established on the material placed before the Court; the Court could not assist the Grievants on the evidence led
Compelling the Respondent to recognize the union and observe fair labour practices
No recognition dispute disclosed in the pleadings; the prayers were unclear
Costs
No order on the 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 Ordered : a. The Claim is declined. b. No order on the costs.
The Claimant did not find it necessary, to as much as date the Statement of Claim before its filing, or file the basic conciliator's certificate.
The parties who are actually aggrieved and their grievances, were not placed before the Court with a reasonable degree of certainty.
The Court is not able to assist the Grievants, based on the material placed before it by their Trade Union, the Claimant herein.
Issues in the judgment
#The names of the parties/case title and the case number are not stated in the judgment text supplied; the Claimant is referred to as 'the Claimant Union' and the Respondent only as the Respondent/B.O.M of Kilimani Primary
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutons and Hospital Workers [KUDHEIHA] v B.O.M. Kilimani Primary School (Cause E535 of 2021) [2024] KEELRC 1553 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1553/eng@2024-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.