1.In its memorandum of claim dated May 25, 2023, the claimant cites the issue in dispute as ‘unfair redundancy and refusal to pay severance benefits to Mr Joseph Muthama Kalandi-(Bus driver) by the respondent company.’
2.In its statement of response dated June 29, 2023, the respondent gave notice that it would raise a preliminary objection on the ground that there is no recognition agreement between the claimant and the respondent, pursuant to section 54 of the Labour Relations Act.
3.The respondent reiterated its objection by notice dated July 3, 2023 asking that the claimant’s claim be struck out.
4.The claimant filed a response to the preliminary objection dated September 19, 2023, stating as follows:a.That the preliminary objection is a non-issue trying to circumvent justice to the grievant and a waste of judicial time;b.That a recognition agreement is not a prerequisite condition when dealing with an individual member’s dispute; it is only necessary when negotiating a Collective Bargaining Agreement (CBA) as provided under section 54 of the Labour Relations Act;c.That trade disputes are dealt with within section 48 of the Employment Act and section 62 of the Labour Relations Act;d.That pursuant to article 41 of the Constitution of Kenya , and sections 4 and 5 of the Labour Relations Act, every employee has a right to join a union of their choice and to be represented by such union;e.That the grievant was the claimant’s member under section 52 of the Labour Relations Act and has the right to be represented by the claimant. The respondent had been notified as such during the pre-court dispute handling process;f.That this Court has pronounced itself on the same issue in Cause No 745 of 2010: Transport Workers Union v DHL Global Forwarding (K) Ltd and Cause No 377 of 2013: Kenya National Private Security Workers Union v Lavington Security Ltd.
5.As stated by the claimant, this court has had previous occasion to consider the issue of locus standi of trade unions to bring claims against employers on behalf of union members, even where there is no recognition agreement.
9.Supported by the clear pronouncement by the Court of Appeal, whose decisions are binding on this court, I have no hesitation in reaching the conclusion that the respondent’s preliminary objection has no basis in law.
10.The preliminary objection is therefore overruled with costs in the cause.