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ELRCPartially AllowedNot stated in judgment (Petition dated 10th December 2024)

Chepkoech & 3 others (Suing as former members of the 2nd Respondent, for themselves on behalf of 143 other former members of the Union) v Kenya Plantation and Agriculture Workers Union (KPAWU) & another (Petition E012 of 2024) [2025] KEELRC 2054 (KLR)

Employment and Labour Relations Court
11 July 2025
4,947 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a trade union must pay former members Kshs. 400,000 each for secretly settling their case without telling them.

What this practically means

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Executive summary

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The Petitioners, 149 former employees dismissed in December 2016 and former members of the 1st Respondent trade union, petitioned the ELRC at Nakuru claiming that the union and their former employer (2nd Respondent) violated their rights by settling and withdrawing Kericho ELRC Case No. 170 of 2016 - the union's claim on their behalf challenging the dismissals - without their knowledge, consent or disclosure of the terms, and by reinstating other dismissed employees but not them. They sought declarations under Articles 35, 27 and 41, mandamus to disclose the settlement terms and any payments, general damages for breach of fiduciary duty, and costs. The 1st Respondent denied wrongdoing, asserting its advocate acted without authority in the consent; the 2nd Respondent denied any collusion or discriminatory rehiring, said the suit was openly withdrawn in court, and challenged the petition as an employment dispute improperly brought as a constitutional petition. The court framed four issues: violation of rights, fiduciary duty, merit and costs. It held that the 1st Respondent union owed and breached a fiduciary duty to the Petitioners by withdrawing their case without informing them of the outcome or reasons, citing Seth Panyako v KUDHEIHA. It found no fiduciary relationship with the 2nd Respondent after termination on 6th December 2016, released the 2nd Respondent from liability, and found no constitutional violations, holding that the 2nd Respondent was entitled to recruit new employees. The court granted mandamus compelling the 1st Respondent to disclose the terms of the consent recorded on 5th June 2018 and any payment schedule, awarded each Petitioner Kshs. 400,000 as compensation for breach of fiduciary duty, with interest at 14% per annum from the date of judgment, and costs of the petition to the Petitioners.

Questions the Court framed

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

  1. 1.Whether the Petitioners' rights were violated contrary to the Constitution
  2. 2.Whether the Respondents had a fiduciary duty towards the Petitioners
  3. 3.Is the petition meritorious
  4. 4.Who bears the costs of the suit

Key legal issues

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01

Whether the 1st Respondent union owed and breached a fiduciary duty to the Petitioners

Holding

The court found in the affirmative - the union owed a fiduciary duty and breached it by withdrawing the members' claim without informing them of the outcome and reasons

Reasoning

The Petitioners were members of the 1st Respondent union which instructed counsel in Kericho ELRC No. 170 of 2016. As the instructing client, the union could not claim ignorance of the outcome. Courts have affirmed that unions owe fiduciary duties to members even after employment ends (Seth Panyako v KUDHEIHA). The claim was withdrawn by the union's counsel without explanation and without updating the members, which the court held was wrongful.

p. 9
02

Whether the 2nd Respondent owed a fiduciary duty or violated the Petitioners' rights

Holding

No - the employer-employee relationship ended on dismissal on 6th December 2016; the 2nd Respondent was released from any liability

Reasoning

The claim in Kericho ELRC No. 170 of 2016 could only be withdrawn by the Claimant or its counsel, which was the 1st Respondent, not the 2nd Respondent. Once the contracts were terminated on 6th December 2016 there was no employer/employee relationship and hence no fiduciary relationship. The 2nd Respondent also had the right to recruit new employees after the dismissals.

p. 9
03

Whether the Petitioners' constitutional rights were violated

Holding

The court found no constitutional violations of the Petitioners' rights by the Respondents; prayers (a), (b) and (c) were not granted

Reasoning

Although the union breached its fiduciary duty, the court declined to find constitutional violations. The 2nd Respondent's fresh recruitment was lawful and within its discretion after the dismissals. The court granted relief on the fiduciary duty footing (mandamus for disclosure and damages) rather than on constitutional grounds.

p. 10

Legal principles established

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  • Trade unions owe a fiduciary duty to represent their members diligently and are legally accountable for breaches of that duty even after the members' employment ends
  • A union which mandated to represent its members in litigation must keep them informed of the outcome and reasons for withdrawal of their case
  • He who alleges must prove - sections 107, 108 and 109 of the Evidence Act place the burden of proof on the party asserting facts

Court orders

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  1. 1.An order of mandamus compelling the 1st Respondent to disclose the terms of settlement of the consent recorded on 5th June 2018, and if the terms included payment, a detailed schedule of payments made to each Petitioner and eventually payment of the Petitioners' rightful dues
  2. 2.The 1st Respondent to pay Kshs. 400,000/= to each of the Petitioners as compensation for breach of fiduciary duty occasioning loss and damage
  3. 3.The Petitioners awarded costs of the petition
  4. 4.Interest to accrue on the damages from the date of judgment at 14% per annum until full payment
  5. 5.The 2nd Respondent released from any liability

The bench

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

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 35, 27, 41 of the Constitution and section 57 of the Labour Relations Act; petition invoked the Court's constitutional jurisdiction

Relief refused

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Prayer (a) - declaration of violation of Article 35 right to information

The court found no constitutional violation of the Petitioners' rights by the Respondents

p. 10

Prayer (b) - declaration of breach of fiduciary duty by entering the settlement consent (as against the 2nd Respondent)

Not merited; no fiduciary relationship between the Petitioners and the 2nd Respondent, and no constitutional violation found

p. 10

Prayer (c) - declaration of discrimination in reinstatement

The 2nd Respondent had a right to recruit employees after dismissing the Petitioners; no discrimination proved

p. 10

Costs

The Petitioners are awarded costs of this petition.

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.

On the issue of the fiduciary duty of the 1st Respondent the court finds in the afirmative.
p. 9Fiduciary duty of trade union
The court releases the 2nd Respondents from any liability.
p. 9No liability of former employer
Prayer No. d of the Petition that a mandamus order to issue compelling the first Respondents to disclose the terms of settlement of consent recorded on 5th June 2018
p. 10Final orders - mandamus for disclosure
The 1st Respondents is ordered to pay Kshs.400,000/= individuals figure to each of the Petitioners as compensation for breach of fiduciary duty occasioning loss and damage upon the Petitioners.
p. 10Final orders - damages
Interest will accrue on the above damages from date of this judgment until full payment at 14% per annum till full payment.
p. 10Final orders - interest
The Petitioners are awarded costs of this petition.
p. 10Final orders - costs
In several authorities courts have ruled that unions owe fiduciary duty to represent their members diligently and are legally accountable for breaches of that duty even after employment ends.
p. 9Union accountability

Issues in the judgment

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minor

Judgment refers inconsistently to the date of withdrawal/settlement of Kericho ELRC No. 170 of 2016, at one point stating 7th June 2018 and elsewhere 5th June 2018

minor

The court describes the Petitioners as having filed the claim themselves, though the claim was filed by the union on their behalf

minor

The judgment refers to 'the Counsel for the Applicant was clearly responsible and accountable to his clients the union members' yet the order described was issued by Justice Njagi Marete; identity of the withdrawing counsel is not established on the record

minor

Petitioners' case date of dismissal is inconsistently stated as December 2016 generally and 6th December 2016 by the Respondents, while the claim is described as challenging termination vide letter dated 7th December 2016

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, "Chepkoech & 3 others (Suing as former members of the 2nd Respondent, for themselves on behalf of 143 other former members of the Union) v Kenya Plantation and Agriculture Workers Union (KPAWU) & another (Petition E012 of 2024) [2025] KEELRC 2054 (KLR)", Case Analysis (2025). Not stated in judgment (Petition dated 10th December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2054/eng@2025-07-11

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