Kenya Union of Commercial, Food and Allied Workers v Jade Collections Limited (Cause 1342 of 2013) [2025] KEIC 1 (KLR)
The bottom line
#A Kenyan court ruled that four workers were unfairly sacked for joining a union, and confirmed unions can sue for members without an employer recognition agreement.
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 had locus to file the suit
- 2.Whether the grievants were members of the union
- 3.Whether the 4 grievants were victimized for joining the union
- 4.Whether the claimant is entitled to the reliefs sought
Key legal issues
#Whether the claimant union had locus standi to sue on behalf of the grievants without a recognition agreement or simple majority
The claimant had locus; a union's right to represent its members in dispute resolution does not depend on a recognition agreement, which is only required for collective bargaining.
The respondent argued that without a recognition agreement and simple majority under section 54(1) of the Labour Relations Act the union lacked standing. The court adopted the earlier ruling of Justice Abuodha, holding that section 22 of the Employment and Labour Relations Court Act read with section 62 of the Labour Relations Act authorises a union to represent members, and that recognition agreements matter only for collective bargaining over terms and conditions of service for employees in active employment.
Whether the grievants were valid members of the claimant union
Yes; membership was proved between 26th March and 2nd April 2013 by signed check-off forms and by admissions in the respondent's witness statement.
The burden lay on the claimant. The claimant produced check-off forms signed and dated by the four grievants. RW1's witness statement admitted awareness that the grievants had joined the union. The court upheld Justice Abuodha's earlier finding that membership ran from 26th March to 2nd April 2013, rejecting the respondent's contention that the employees thought they were joining a 'chama'.
Whether the four grievants were victimized for joining the union and unfairly terminated
Yes; victimization and unfair, illegal termination were proved on a balance of probabilities.
All grievants received warning letters on 4th April 2013, immediately after their union membership became known, without disclosure of any specific misconduct. The respondents' advocates' letter of 18th April 2013 confirmed the grievants were barred from the shop floor and told to stay away, yet the respondent relied on a letter of 19th April 2013 accusing them of absconding. The court found the absconding allegation irreconcilable with the advocates' letter and the timing demonstrated victimization for unionisation contrary to Article 41.
What remedies were payable to the four grievants
Notice pay of one month, untaken leave limited to 18 months, and compensation of six months' gross salary each; gratuity, overtime, off-duty and 12 months' compensation claims disallowed.
No evidence challenged the leave claims, but leave was capped at 18 months under section 28(4) of the Employment Act. Gratuity was not payable as the grievants were under NSSF (section 35(6)). Overtime and off-duty claims required strict proof of hours worked, which was absent. Because the fixed-term contracts would have ended on 31st December 2013 by effluxion of time, 12 months' compensation was excessive and 6 months was awarded.
Legal principles established
#- A trade union has the right to represent its registered members in proceedings before the court whether or not it has a recognition agreement with the employer; a recognition agreement is only necessary for collective bargaining.
- Signed and dated check-off forms constitute sufficient proof of an employee's consent to union membership, and an employer has no business interrogating employees about their union membership.
- Where an employer bars employees from the premises and then accuses them of absconding, the victimization and unfair termination claim on a balance of probabilities is proved.
Court orders
#- 1.A declaration that the grievants were victimized for unionisation and unfairly terminated from work
- 2.George Mutuma: notice pay Kshs. 30,000; untaken leave (18 months) Kshs. 45,000; compensation for unfair termination equivalent of 6 months gross salary Kshs. 180,000; total award Kshs. 225,000 with interest at court rate from date of filing suit
- 3.Simon Musili: notice pay Kshs. 15,000; untaken leave (18 months) Kshs. 22,500; compensation for unfair termination equivalent of 6 months gross salary Kshs. 90,000; total award Kshs. 127,500 with interest at court rate from date of filing suit
- 4.Kevin Odala: notice pay Kshs. 15,000; untaken leave (18 months) Kshs. 22,500; compensation for unfair termination equivalent of 6 months gross salary Kshs. 90,000; total award Kshs. 127,500 with interest at court rate from date of filing suit
- 5.Sylvester Ouma Okoli: notice pay Kshs. 20,000; untaken leave (18 months) Kshs. 30,000; compensation for unfair termination equivalent of 6 months gross salary Kshs. 120,000; total award Kshs. 170,000 with interest at court rate from date of filing suit
- 6.Costs of the claimant awarded under rule 70(4) of the Employment and Labour Relations Court (Procedure) Rules 2024 in the sum of Kshs. 100,000
- 7.Stay of 30 days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 12 of the Industrial Court Act, 2010 (employment and labour relations jurisdiction), read with Articles 22(1) and 23(3) of the Constitution of Kenya, 2010
Relief refused
#Reinstatement of all seventeen employees
The claimant dropped the cases of several grievants at the hearing and retained only four, so reinstatement of all seventeen was not pursued; judgment was limited to the four grievants who prosecuted the case.
12 months' gross wages as compensation for unfair termination
The grievants' fixed-term contracts were due to end on 31st December 2013 by effluxion of time, so 12 months' compensation would be excessive; the court awarded 6 months instead.
Overtime and off-duty compensation claims
These require strict proof of the hours worked outside official hours, which was not provided.
Service gratuity for each completed year of service
The grievants were registered under the NSSF, so gratuity was not a statutory right under section 35(6) of the Employment Act.
Full leave claims beyond 18 months
The claimant led no evidence that leave was applied for and denied; leave is limited to 18 months capable of being carried forward under section 28(4) of the Employment Act.
Underpayment of wages claims (e.g. for Samuel Kinja and Antony Githinji)
Those grievants' cases were dropped and not prosecuted at the hearing.
Costs
Costs of the claimant awarded under rule 70(4) of the Employment and Labour Relations Court (Procedure) Rules 2024 for a reasonable sum of Kshs. 100,000 to cover expenses, taking into account that the default proceedings were set aside; stay of 30 days granted.
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.
In the upshot I hold that the claimant had a right to represent its members without recognition agreement.
The union has a right to represent its members once they register whether or not it meets simple majority for recognition.
Consequently the court finds that the claimant proved its case of victimization for the grievants for joining the union on a balance of probabilities.
The respondent is guilty of victimization of the grievants for unionisation.
The court awards notice pay of 1 month and compensation of salary equivalent of 6 months to each of the grievants.
A declaration that the grievants were victimized for unionisation and unfairly terminated from work.
Cost of the claimant awarded under rule 70 (4) of the Employment and Labour Relations Court (Procedure) Rules 2024 for a reasonable sum to cover expenses in the matter taking into account the default proceedings were set aside Kshs. 100,000
Total award Kshs. 225,000 with interest at court rate from date of filing suit
Issues in the judgment
#The case number of the suit is not stated anywhere in the judgment provided.
Internal inconsistency in the date of filing: the memorandum of claim is described as dated 2nd August 2014, but the respondent's submissions state the suit was filed on 2nd August 2013.
Inconsistent spelling of grievants' names between the claim and the disposition: 'Kevin Odala'/'Ondalo'/'Ondalo'/'Okoti' versus 'Okoli' in the claimant's list and the award to 'Sylvester Ouma Okoli'.
The court appears to treat the four prosecuting grievants inconsistently, listing 'Okoli' in the claimant's retained four but earlier identified as one of the seventeen; the award for 'Sylvester Ouma Okoli' does not match the named retained grievant list which includes 'Okoli'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Jade Collections Limited (Cause 1342 of 2013) [2025] KEIC 1 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.