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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petitioners' rights were violated contrary to the Constitution
- 2.Whether the Respondents had a fiduciary duty towards the Petitioners
- 3.Is the petition meritorious
- 4.Who bears the costs of the suit
Key legal issues
#Whether the 1st Respondent union owed and breached a fiduciary duty to the Petitioners
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
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 The claim was withdrawn by the union's counsel without explanation and without updating the members, which the court held was wrongful.
Whether the 2nd Respondent owed a fiduciary duty or violated the Petitioners' rights
No - the employer-employee relationship ended on dismissal on 6th December 2016; the 2nd Respondent was released from any liability
The claim in Kericho ELRC No. 170 of 2016 could only be withdrawn by the Claimant or its counsel, which was the 1st Respondent, not the 2nd Respondent.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.
Whether the Petitioners' constitutional rights were violated
The court found no constitutional violations of the Petitioners' rights by the Respondents; prayers (a), (b) and (c) were not granted
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.
Legal principles established
#- 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
#- 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.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.The Petitioners awarded costs of the petition
- 4.Interest to accrue on the damages from the date of judgment at 14% per annum until full payment
- 5.The 2nd Respondent released from any liability
The bench
#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
#Prayer (a) - declaration of violation of Article 35 right to information
The court found no constitutional violation of the Petitioners' rights by the Respondents
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
Prayer (c) - declaration of discrimination in reinstatement
The 2nd Respondent had a right to recruit employees after dismissing the Petitioners; no discrimination proved
Costs
The Petitioners are awarded costs of this petition.
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.
On the issue of the fiduciary duty of the 1st Respondent the court finds in the afirmative.
The court releases the 2nd Respondents from any liability.
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
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.
Interest will accrue on the above damages from date of this judgment until full payment at 14% per annum till full payment.
The Petitioners are awarded costs of this petition.
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.
Issues in the judgment
#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
The court describes the Petitioners as having filed the claim themselves, though the claim was filed by the union on their behalf
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
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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Abura v Coast Water Works Development Agency & 11 others (Petition E009 of 2025) [2025] KEELRC 2354 (KLR)[2025] KEELRC 2354 (KLR)8 Aug 2025followed
Cite this brief
#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.