Lewa Wildlife Conservancy v Kenya Game Hunting & Safari Workers Union [2017] KECA 404 (KLR)

The Court noted there is no statutory definition of a unionisable employee beyond eligibility for membership of the particular union under section 2 as read with section 59(3) of the Labour Relations Act. The respondent asserted the 31 could not hire and fire, while the appellant asserted positions of responsibility; neither, in the Court's view, defines unionisability. The contention that 31 was too large a number to be managers also failed. The burden of proof was on the respondent and was not discharged.

Relying on its own prior decision in Kenya Chemical & Allied Workers' Union v Bamburi Cement Limited, the Court held that section 52 on direct payment of trade union dues applies only to union members, so continued direct payments were not a relevant factor in determining whether the employees were unionisable. Nothing much, therefore, turns on the signed check off forms.

The trial judge had found no res judicata because the check off forms were signed on or after 2nd February 2013, after the judgment in Industrial Court Cause No. 156 of 2011 delivered on 22nd August 2012. The Court of Appeal held it unnecessary to delve into that issue, as its conclusion that the 31 employees were not unionisable disposed of the appeal and rendered the respondent's claim a dismissal.

The trial judge had reasoned that exclusion from union activities must be scheduled by name, office or rank and cannot be unilateral or automatic. The Court of Appeal considered the appendix C exclusions and the parties' competing contentions on managerial status, but ultimately grounded its decision on the respondent's failure to prove that the 31 employees were unionisable, without expressly adopting or rejecting the trial judge's interpretation.