Kenya Hotels and Allied Workers Union v Grand Regency Hotel, Kenya Union of Domestic, Hotels, Education Institutions, Hospitals and Allied Workers (KUDHEIHA) & Kenya Hotel Keepers and Caterers Association (Cause 39 of 2007) [2017] KEELRC 778 (KLR) (Employment and Labour) (25 August 2017) (Ruling)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NO. 39 OF 2007

KENYA HOTELS AND                                                                                                                                  

ALLIED WORKERS UNION …….………............................................................….….....…  CLAIMANT

VERSUS

THE GRAND REGENCY HOTEL ………................................................................……....  RESPONDENT

KENYA UNION OF DOMESTIC, HOTELS, EDUCATION INSTITUTIONS, HOSPITALS                          

AND ALLIED WORKERS (KUDHEIHA) ……….....................................……. 1^ST INTERESTED PARTY

THE KENYA HOTEL KEEPERS AND  CATERERS ASSOCIATION ……...... 2^ND INTERESTED PARTY

Mr. John Simiyu for claimant/applicant

M/S Oyombe for respondents               

Mr. Ongoto for interested parties         

RULING

1. The application seeks to have Nduma J. recuse himself for the reason that he has determined a similar matter against the applicant in Petition No. 5 of 2013.  In her Ruling dated 2^nd June 2015, Hon. Lady Justice Hellen Wasilwa stayed the hearing of the Application dated 23^rd August 2012 seeking orders to have the respondents cited for contempt of court pending the hearing and determination of Petition No. 5 of 2013, by a three Judge Bench comprising of Nduma J. presiding, Ndolo J. and Onyango J.

2. The Lady Justice opined that Petition No. 5 of 2013, will lay to rest this Cause No. 37/2007 concerning matters being argued in the notice of motion.

3. Petition No. 5 of 2013 was heard and determined by the three Judge Bench.

4. The Bench held inter alia that provided there was a recognition agreement between KUDHEIHA and Kenya Hotel Keepers and Caterers Association, the 1^st interested party and 2^nd interested party herein, the claimant/applicant could not force the Hotels that were members of the Kenya Hotel Keepers and Caterers Association, to forfeit their membership and recognize the claimant/applicant as the exclusive union permitted to negotiate a Collective Bargaining Agreement with the specific Hotel.

5. The claimant/applicant instead of abiding by the decision of the three (3) Judge Bench in Petition No. 5 of 2013, which is a decision of a superior court as opposed to the decision of the erstwhile Industrial Court, which was a tribunal at the time Hon. James Rika, made the decision, the applicant, now purports to use this as a reason to allege bias on the part of Nduma J. because, Nduma J. participated in the Bench in Petition No. 5 of 2013, which made a Judgment unfavourable to the claimant/applicant.

6. It is my considered view, that this application for recusal, is misconceived and an abuse of the process of the court.

7. The court stated the law on the issue of recognition between the claimant/applicant and members of the 2^nd interested party in Petition No. 5 of 2013.  The decision of the superior court, supersedes the position taken by Justice Rika in a Judgment of the erstwhile tribunal on 31^st July 2008.

8. Accordingly, the application for recusal of Nduma J. for stated reasons is refused.

Dated, Signed and delivered at Nairobi this 25^th day of August, 2017

MATHEWS NDERI NDUMA

PRINCIPAL JUDGE