[2023] KEELRC 169 (KLR)
The court held that the claimant union did not have the legal capacity to represent the grievant in this matter, as it was not within the industry scope covered by the union's constitution. The claimant's concession in submissions confirmed this lack of capacity. The court further determined that such a fundamental...
Source-derived case information.
- Citation
- [2023] KEELRC 169 (KLR)
- Parties
- Applicant: Kenya National Union of Domestic Workers; Respondent: Diani Flowers and Landscaping Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Employment and Labour Relations Cause E405 of 2022
- Procedural Posture
- Employment and Labour Cause / Ruling on Preliminary Objection
- Outcome
- claim struck out for want of locus standi; preliminary objection sustained
- Judges
- J Rika
- Legal Topics
- Trade Union Capacity, Locus Standi, Unfair Termination, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya National Union of Domestic Workers
Applicant
Diani Flowers and Landscaping Limited
Respondent
Procedural Posture
Employment and Labour Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claimant union had the legal capacity (locus standi) to file the claim on behalf of the grievant.
- 2 Whether the defect in capacity could be cured by amendment or substitution of parties.
Ratio Decidendi
The court held that the claimant union did not have the legal capacity to represent the grievant in this matter, as it was not within the industry scope covered by the union's constitution. The claimant's concession in submissions confirmed this lack of capacity. The court further determined that such a fundamental defect could not be remedied by amendment or substitution of parties. The proper course would have been to maintain the notice of withdrawal. Consequently, the preliminary objection was upheld and the claim was struck out for want of locus standi.
Court Disposition
claim struck out for want of locus standi; preliminary objection sustained
Orders
- The preliminary objection is sustained.
- The claim is struck out.
Full Case Text
Judgment text and source record
25 paragraphs
Kenya National Union of Domestic Workers v Diani Flowers and Landscaping Limited (Employment and Labour Relations Cause E405 of 2022) [2023] KEELRC 169 (KLR) (31 January 2023) (Ruling)
Neutral citation: [2023] KEELRC 169 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Employment and Labour Relations Cause E405 of 2022
J Rika, J
January 31, 2023
Between
Kenya National Union of Domestic Workers
Claimant
and
Diani Flowers and Landscaping Limited
Respondent
Ruling
1. This claim was filed on June 15, 2022.
2. It was filed by the claimant union on behalf of Mourine Achieng’ Omondi, a former employee of the respondent, who claims unfair termination.
3. The respondent filed a notice of preliminary objection, on the capacity of the claimant, to present the claim. It is submitted that the claimant union does not represent the industry in which the respondent carries on its business.
4. The claimant filed a notice of withdrawal of the claim, dated November 11, 2022.
5. However, on November 15, 2022, the advocates consented to have the claim reinstated, and preliminary objection determined on the basis of their written submissions.
The court finds: - 6. The claimant concedes in its submissions that ‘the claimant’s present advocates were appointed on November 11, 2022 and the claim was initially filed by the claimant whose members are not trained in law, mistake if any can be rectified thorough substitution and/or amendment, the claimant is willing to have the pleadings amended, thereby substituting the claimant with the grievant, one Mourine Achieng Omondi. '
7. In effect the claimant concedes it does not have the capacity to represent the grievant. The claimant cannot feign ignorance, being a registered trade union. It is familiar with its constitution, and the area of its representation.
8. The claim is filed by a party with no locus standi, and cannot be cured by amendment or the proposed substitution.
9. The claimant should have retained faith, in its notice of withdrawal of the claim, dated November 11, 2022.
It is ordered: -a.The preliminary objection is sustained, and the claim is struck out.b.Costs to the respondent to be paid by the claimant union.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER THE MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 31ST DAY OF JANUARY 2023. JAMES RIKAJUDGE