[2015] KEELRC 231 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI

CAUSE NO.643 OF 2015

KENYA AVIATION WORKERS UNION ………………………........…... CLAIMANT

VERSUS

BOLLORE AFRICA LOGISTICS – KENYA …………....................… RESPONDENT

AVIATION & AIRPORT SERVICES WORKERS UNION …... INTERESTED PARTY

AND

ROB ABKULA

And

LEORNARD OCHIENG

RULING

1. The Ruling herein relate to the Preliminary Objections filed on 24th June 2015 by Leonard Ochieng.

2. On 24th June 2015 Leonard Rufus Ochieng for the Interested Party filed Preliminary objections herein on the following grounds;

a) That the Court do enter summary judgement by dismissing the claim on the ground that it does not raise a cause of action, [it is] frivolous, vexatious, scandalous, and an abuse of the Court process.

b) That the Claimant has been filed in total disregard to the procedure and rules of the Industrial Court Act, 2011 [The Employment and Labour Relations Court Act] and any other written law.

c) That the claim is time barred.

d) That the cause of action has been brought against a wrong party and other grounds to be adduced at the hearing hereof.

3. The Court noting the issues raised by Leonard Ochieng directed all parties to file their written submissions. On 8th October 2015, Leonard Ochieng filed his written submissions; on 14th October 2014 McKay & Company Advocates for Rob Akhula filed their written submissions; and on 15th October 2015 both the Respondent and Claimant filed their written submissions.

4. Leonard Ochieng submitted that acting for the Interested Party the claim herein was filed by the Claimant on the basis of Gazette notice Number 5027 in Kenya Gazette Notice published on 6th May 2009 issued under section 49 of the Labour Relations Act, 2007 (the Act). The Order issued by the minister under section 49 was directed to all employers who had a collective bargaining agreement (CBA) in force at the time under the provisions of section 50 of the Act. The notice was binging to all such employers. The Respondent herein had a running CBA at the time between her and the Interested Party.

5. Leonard Ochieng also submitted that in the application by the Claimant dated 16th April 2015 it is supported by the affidavit of Moss Ndiema and the prayers sought are that the Court should stay and or stop the operation and effect of Gazette notice No.5027 of 2009 dated 6th may 2009 requiring the deduction from the salaries of the members of the Claimant union to pay the agency fees to the Interested Party by the respondent. That the order made the Court was inadvertent, a misrepresentation and was meant to mislead the Court as the Respondent was not the maker of the Gazette Notice issued by the minister who is not a party herein. The decision pursuant to gazette Notice No.5027 of 2009 which bind the Respondent to comply. Where the Claimant was aggrieved, a dispute should have been filed against the Minister and not the respondent. The current suit is therefore misconceived.

6. Leonard Ochieng also submitted that under section 49 of the Act the Respondent was required to comply with legal Notice No. 5027 of 2009 and section 50 of the Act has sanctions for non-compliance. The Legal Notice has not been suspended or annulled. That the suit has been originated through an ordinary suit, the basis of the Claimant is a notice made by the Minister and the subject dues are intended for the Interested Party and nothing is due to the claimant. The Minister decision was based on section 49 of the Act and only an appeal can be lodged against the minister’s decision or application through judicial review. The decision made by the Minister can be challenged within 30 days and the Notice of the Minister was published on 6th May 2009 a period of over 30 days since. The suit herein is effectively time barred.

7. Mr Ochieng also submitted that the minister has since issued Gazette notice No.6135 of 2013 on the issue of agency fees in respect of the Interested Party. This effectively revoked and replaced Notice No.5027 of 2009 which ceased to exist. To base a claim on such a revoked and replaced Notice is to render the action without basis and the same should be dismissed. The orders sought cannot be enforced and the Claimant has been filed against the wrong party and it is not an appeal and therefore should be struck out. The suit also suffer limitation of time.

8. These submissions rely on the following cases – Kenya Ports authority versus Industrial Court & Another, Civil Appeal No.236 of 2012; Republic versus David Kimaiyo and Akitch Okola [ex parte], Judicial Review and Constitutional Misc. Appl. No.183 of 2014; Associated Provincial Pictures Houses versus Wednesbury Corporations (1948) IKB 233.

9. Rob Akhula in his written submissions filed on 14th October 2015 relate to objections filed by Nicholas Barasa. The ruling herein relates to the objections filed by Mr Ochieng for the Interested Party. These were the directions of the Court on 1st October 2015.

10. The Respondent supports the objections of the Interested Party. The Respondent does rely on legal Notice No.6135 of 2013 on the grounds that there is a CBA between the Respondent and the Interested party; there exists legal notice No.6135 of 2012on agency fees and the notice is not on specific CBA but does not set the limit. Where there may be a finding that Legal Notice 5027 of 2009 had a lacuna this is now resolved by Legal Notice No.6135 of 2012. The Claimant has a list of its members who have resigned from the Interested Party, such members derive benefits from the CBA negotiated by the Interested Party. Legal Notices No. 7669 and 6135 give power to deduct agency fees are not time specific to any CBA unlike Legal Notice No.5027 of 2009. These notices have not been revoked and any challenge can only be by way of judicial review proceedings seeking to quash the same against the public body that made the decision. The notices cannot be revoked without inviting the body that made the decision a chance to give its reasons.

11. The Respondent also submitted that the challenge herein relate to Legal notice No.5027 of 2009 subsequent to which Notices No.7669 and 6135 have been issued. Legal Notice No.5027 of 2009 is no longer applicable. Notice No. 7669 was issued under section 48 of the Act while Notice No.6135 was issued under the provisions of section 49 of the Act. Section 48(3) and 49(3) compel employers against whom such notices have been issued to deduct the agency fees and section 50 penalise any failure to comply with the Minister’s notice.

12. The objections raised by the Interested Party have merit and the claim herein has been overtaken by events as the claim should have been a judicial review application against the AG and Minister and the subject legal Notice has been repealed and has no effect and the claim should be struck out.

13. The Respondent has relied on the cases of _ Karanja Kabage versus Joseph Kiuna Kariabegu Nganga & 2 others [2013] eklr.andMukisa Biscuit Manufacturers ltd versus Westend Distributor Ltd [1969] EA.

14. The Claimant on their part submitted that the reasons for the Claimant filing application and suit herein is on the basis of a memo dated 8th April 2015 done by the Respondent to its employees on the reasons that the Respondent was going to deduct from the salary of Claimant members agency fees and payable to the Interested party. Under the provisions of section 49 of the Act and Gazette Notice No.5027 of 2009 which followed a dispute that had been reported to the Minister by the Respondent and it was determined. The action of the Respondent violates the constitutional rights of the Claimant members.

15. The Claimant also submitted that the objections noted by the Interested party are not matters of law and only form basis grounds of opposition; these are general grounds; and do not note any legal provisions that give rise to the same. Without such good basis, the Claimant should be allowed to be heard on merit and without hindrances. There is an application and Claim and not an Appeal and the objections noted do not meet the threshold established in the Mukisa Biscuit Case that objections should raise any point of law which may have the basis of disposing off the suit. Such issues should be clear from the pleadings and not on facts that should be addressed in evidence. Where the challenge relate to the facts that notice to parties was not issued, such are factual matters that cannot be addressed through objections. That the jurisdiction of the Court must be clear. Section 49 of the Act does not set time limitations and has now been repealed by the labour Relations Court Act, 2014. The objections should be dismissed.

16. The Claimant has relied on the following cases – J. P. Machira t/a Machira & Co. Advocates versus Wachira Waruru & Another HCCC No.2002 of 2000; Director Kenya Medical Research institute versus Agnes Muthoni & 35 others, Civil Appeal No.15 of 2011; Ainu Shamsi hauliers Ltd versus Kenya Revenue Authority, Civil Case No.390 of 2012;and Oraro versus Mbajja [2005] 1KLR.

DETERMINATION

17. The threshold and the legal delimitations for a preliminary objection were set a long time ago in the case of Mukisa Biscuit Manufacturing Co. Ltd versus West End Distributors Ltd [1969] E.A 696. The principle has been and continues to be quoted and reinforced by the superior courts including the Court of Appeal, and recently by the Supreme Court.

18. As per Law J.A:

So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.

19. As per Sir Charles Newbold P:

A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.

20. In the case of Oraro versus Mbajja [2005] eKLR the Court held that;

I think the principle is abundantly clear. A ‘’ preliminary objection’’, correctly understood is now well identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle , a true preliminary objection which the Court should allow to proceed. I am in agreement...that ‘’where a Court needs to investigate facts, a matter cannot be raised as a preliminary point.’’

21. Mr Ochieng for the Interested party herein has in his four issues raised in objection noted that the claimant’s suit is frivolous and an abuse of the Court process; the claim has been filed in disregard to the procedure and rules of the Court and the constitutive legislation; the claim is time barred; and the suit is against a wrong party. All the issues as pleaded raise issues of law with regard to Court process and procedure adopted and regulated by the Court Rules and Industrial Court Act [Employment and Labour Relations Court Act]; question of time limitation; and parties to the suit. Such are matters that are grounded in law, based on the rules of the Court or the Employment and Labour Relations Court Act and the labour Relations Act and where addressed in view of the Rules and the applicable statutes, such matters do not require the call of evidence or invite the discretion of the court. Such can be determined purely by the application of the relevant legislation and Rules of the Court.

22. On the process and procedures used by the Claimant in filing this suit, the challenge is that this should have been by way of an appeal as the subject matter relates to the challenge to Legal Notice No.50 of 2009 issued by the Minister on 6th may 2009. That such a decision can only be challenged against the Minister by way of Judicial Review and not by a memorandum of Claim as herein; and that such a suit should not be against the Respondent but to the Minister and the AG as the Minister is the one who made this decision. To thus relate this issue properly, reason and reference must be made to the next objection on the applicable law, the Labour Relations Act (the Act). Section 48, 49 and 50 have been cited as applicable in this case and with regard to Legal Notices No.5027 of 2009, 6135 of 2012 and 7669 of 2012 that the parties have relied upon in the filing of the suit and the basis of the objections thereto.

23. In the Notice of Motion filed by the Claimant on 20th April 2015, the substantive prayers therein relate to;

Pending the hearing and determination of the motion hearing this Court do issue an interim conservatory order to stay and/or stop the operation, implementation and effect of the respondent’s Gazette Notice Number 5027 of 2009, dated 6th May 2009 requiring the deduction from the salaries of the members of the Claimant union members to pay the agency fees to the Interested Party by the respondent.

24. Other prayers relates to memo dated 8th April 2015 on the deduction of agency fees from the salaries of Claimant members and the refund of any such deductions made back to the Claimant members. These prayers are based on the grounds that the Claimant has the majority of the employees of the Respondent as its members with representative and participatory rights in respect to the interests of the employees of the Respondent over those of the Interested Party. In the supporting affidavit of Moss Ndiema, he avers that on 27th March 2015 the Respondent reported a dispute to the Minister and before the dispute, the Respondent wrote a memo on 8th May 2015 to employees and members of the Claimant that they were going to deduct agency fees payable to the Interested party pursuant to the provisions of section 49 of the Labour Relations Act an pursuant to Gazette Notice No.5027 of 2009. That on 15th January 2015 the Claimant and Respondent singed a Recognition Agreement. That the Interested party has closed its account under reference in Notice No.5027 of 2009.

25. In this regard, the Claimant Statement of Claim seek various declarations and at Number (iii) states;

A Declaration that the gazette notice number 5027 of 2009 is otiose and unimplementable for reasons that is has been overtaken by events in terms of sections 48 and 49 of the Labour Relations Act, 2007.

26. This being the claim and the basis of the interim orders sought in the Notice of Motion, it acknowledges that indeed, Gazette Notice No.5027 of 2009 has been overtaken by events in terms of sections 48 and 49 of the Act. That such Notice is an act in futility as it cannot be implemented, applied or executed. Therefore, in seeking the interim orders in the Notice of Motion that the Court should stay and or stop the operation, implementation and effect of the Respondent’s Gazette Notice Number 5027 of 2009is in itself an act in futility as it cannot be implemented or executed. The Interested party has also brought to the attention of the Court the existence of Gazette Notices No. 6135 of 2012 and 7669 of 2012. There were no submissions by the Claimant with regard to these Legal Notices and the submissions by the Interested party with support by the Respondent is that Such Notices affect the entire suit and claim in their force and application. Where Legal Notice No.5027 of 2009 is futile, unimplementable or inapplicable or cannot be executed, Legal Notices No.6135 and 7669 of 2012 bring clarity. That Legal Notice No.5027 of 2009 is revoked. It has no legal force. It does not apply any more. It is of no effect up to and until the time of its revocation.

29. In the referenced Gazette Notice No.5027 of 2009 dated 6th May 2009 it stated as follows:

Gazette notice no. 5027

…

Deduction of agency fees

In exercise of the powers conferred by section 49(1) of the Labour Relations Act, the Minister for labour makes the follows Orders:

(a) SDV Transami Kenya to deduct Agency Fees amounting to … from wages of each unionisable employee who is not a member of Aviation and Allied Workers Union (K), but is covered by the Collective Bargaining Agreement between the union and SDV Transami Kenya, RCA No. 14 of 2009 as specified above.

(b) The deduction be effected within thirty (30) days of receiving the Order.

(c) Remit …payable to Aviation and allied Workers Union (K), Account No.14000 2250 5301 at CFC Stanbic Bank, Kimathi Street branch.

30. Thus the Order of the Minister SDV Transami with regard to Claimant members in their employment. This Order is issued under the provisions of section 49(1) of the Labour Relations Act thus;

49. (1) A trade union that has concluded a collective agreement registered by the National Labour Court with an employer, group of employers or an employers’ organization, setting terms and conditions of service for all unionisable employees covered by the agreement may request the Minister to issue an order requiring any employer bound by the collective agreement to deduct an agency fee from the wages of each unionisable employee covered by the collective agreement who is not a member of the trade union.

31. The specific employer under Notice 5027 is SDV Transami. The Notice does not relate to the respondent, Ballore Africa Logistics – Africa or the Interested Party, Aviation & airport Services Workers Union. Notice 5027 of 6th may 2009 notwithstanding, the Minister also issued Notice No.8221 of 11th February 2009 under the provisions of section 48 of the Labour Relations Act on Union dues deductions thus;

48. (1) In this Part, “trade union dues” means a regular subscription required to be paid to a trade union by a member of the trade union as a condition of membership.

32. The Notice under 8221 related to deduction of union dues with regard to the claimant’s members. Such orders and Notice was however revoked by Legal Notice No. 7669 of 1st July 2011 when the Minister issued new orders with regard to deduction of Union dues under the provisions of section 48(1) of the Act. Notice No.7669 of 1st July 2011 was also revoked vide Notice No.13571 of 29th July 2012 when the Minister gave a new order under the provisions of section 48(2) of the Act.

33. Therefore, Notice No. 7669 of 1st July 2011 and Notice No.13571 of 29th July 2012 are issued under the provisions of section 48 and not under section 49 of the Act. Also Notice No.5027 of 6th May 2009 and Notice No. 6135 of 2nd November 2012 are both issued under the provisions of section 49 of the Act. In this case, Notice No.6135 directed as follows;

Collective of Agency Fees

In the exercise of the powers conferred by section 49 of the labour Relations Act … the Minister for Labour makes the following Order:

(a) Orders every employer who employs not less than five (5) members of Aviation and Airports Services Workers Union (K) to deduct …agency fees from the wages of his employees who are covered by the CBA and all those are not paying trade union dues

(b) Deductions to commence on 1st November 2012.

(c) To remit within ten (10) days … to the union account No. 010 2006 1115 400.

34. This order, similar to the one under Legal Notice No.5027 as it relates to deduction of agency fees under section 49 of the Act. The only difference is that Notice no.5027 was with regard to a specific employer, SDV Transami and the Claimant while Legal Notice No.6135 relates to all employers and the Interested Party.

35. At this point and by the time the Claimant filed their Notice of Motion and Statement of Claim on 20th April 2015, there were fundamental changes with regard to the orders under Notice No.5027 of 2009 and Notice No.6135 of 2012. One relates to the Claimant while the other relates to the Interested Party. It cannot then be correct that one Notice revokes the other Notice. Each is made in its own context. To therefore terminate the whole suit on the basis that Notice No.5027 of 2009 has been revoked by Notice No.6135 would be a misapplication of the law under which the Notices have been issued.

36. The reading of the Court with regard to these Notices is that they relate to different orders and directions.

37. A challenge on any legal notice issued by the Minister has to be referred to the Minister and any suit that arise out of such a matter must include the Minister. That is the Rule with regard to any proceedings. However, where the Claimant fails to enjoin a party crucial to any proceedings, such a suit does not suffer a fatal blow as justice demands the Claimant to move with haste and address the same. where the Claimant does not find it necessary to add such a party, the suit they have filed will proceed but the remedies sought which relate to a party not joined in the suit cannot issue or be enforced against the parties noted as respondents.

38. This is a matter for the Claimant to address.

39. The title under which a litigant opts to use, apply or follow in filing any proceedings is no longer a substantive issue to defeat the course of justice. Whether the party decides to file Judicial Review application or a Constitutional petition as against a Memorandum of Claim, what is ultimately crucial is the nature of orders sought. However where a party has the benefit of legal representation, more is expected in terms of the nature of proceedings filed. Where recourse should be a petition or a Judicial Review application as against a Claim, reason demands that such a matter should proceed under that banner. However, where such a matter is not so filed it is not fatal to the suit. The only limitation therein is the nature of orders that can be granted by the court. Without going into the merits of the case, this will be sufficient to state in this regard.

40. With regard to time, the basis of the objection is that the Notice No.5027 of 2009 that the Claimant has based the application and claim upon was supposed to be challenged 30 days from the date of its issued through an appeal or through a judicial Review application against the Minister who issued it. That such 30 days have lapsed and no appeal or review was filed within the required time lines.

41. As noted above, it is apparent that there are a plethora of issues herein that require to be resolved. One relates to the provisions and effect of Notice No.5027 of 2009 and subsequent Notices especially No.6135 of 2012 and the memo dated 8th April 2015 issued by the respondent. This memo as set out in the Statement of Claim was the cause for agitation that led the claim to file the current suit. As such, there has been ongoing issues culminating in the Memo dated 8th April 2015 by the respondent. Such a memo does affect the Recognition Agreement between the Claimant and the respondent, and the Recognition Agreement and CBA between the Respondent and the interested party. To curtail such issues now brought out in the pleadings of the parties herein would be to muzzle the same and forever leave the parties herein in wrangles.

42. For purposes of the cause of action now before court, the challenge to time does not suffice.

To ensure industrial peace, fair labour relations, the Court shall proceed and hear the parties on merit.

(a) The objections set out by the Leonard Ochieng for the Interested Party are hereby declined.

(b) The interim orders shall remain in force.

(c) Issues between the Interested party shall be addressed next as this is a matter of concern and require urgent attention.

(d) Costs shall be in the cause.

Delivered in open court at Nairobi and dated this 29th day of October 2015.

M. Mbaru

JUDGE

In the presence of:

Lilian Njenga: Court Assistant………………….

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