Mombasa Maize Millers Limited v Bakery, Confectionery, Food Manufacturing and Allied Workers Union & 1 other
The bottom line
#Kenya's Court of Appeal confirmed that a union claiming recognition must prove it has signed up a simple majority of an employer's actual employees, not just produce names on lists.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof on a trade union seeking recognition
The 1st respondent failed to discharge the burden of proving recruitment of a simple majority of the appellant's employees; check off lists alone were insufficient given the employer's specific objections.
The court held that attainment of a simple majority for recognition is a matter of evidence. Apart from check off lists, no other evidence was adduced by the 1st respondent. The appellant had raised specific objections that listed persons were outsourced workers, had left employment, or had not signed the lists. Check off lists may suffice in appropriate circumstances, but here more was needed.
Presumption arising from an existing recognition agreement
An existing recognition agreement with the 2nd respondent gives rise to a rebuttable presumption that the 2nd respondent represents a simple majority; the 1st respondent did not rebut it.
Because trade union membership is fluid, a recognised union's membership may drop below a simple majority, but the existence of a recognition agreement and CBAs is proof enough that the recognised union attained the threshold. Rebuttal requires cogent evidence such as resignations, revocation by the National Labour Board, or recruitment of a simple majority by another union under Sections 48(6), 54(5) and 54 of the LRA.
Court-ordered balloting between competing unions
The learned Judge erred in directing balloting to determine which union the employees preferred; such an order is beyond the court's mandate and infringes freedom of association.
Following this Court's earlier decision in Railways and Allied Workers Union v Rift Valley Railways Workers Union, balloting under section 56(1)(d) of the LRA is for intra-union disputes, not inter-union rivalries. Directing employees to choose between unions on the court's own motion infringes the right of employees to join a union of their choice under sections 4(1) and 5(1) of the LRA, Article 41 of the Constitution and ILO Convention 87.
Role of a first appellate court
This being a first appeal, the Court's role is to re-evaluate, re-assess and re-analyze the evidence and determine whether the trial court's conclusions should stand.
The Court reiterated the settled first-appeal jurisdiction, citing Kenya Ports Authority v Kuston (Kenya) Limited, that it must re-evaluate and re-analyze the evidence before the trial court and give reasons either way before determining whether the conclusions reached by the learned Judge are to stand or not.
Legal principles established
#- For recognition under Section 54 of the LRA, a trade union must establish both that it has recruited a simple majority of unionisable employees and that those employees are in the employment of the employer from whom recognition is sought.
- Where a recognition agreement is in existence, a rebuttable presumption arises that the trade union subject of that agreement represents a simple majority of unionisable employees.
- It is not for a court to direct balloting of employees to choose between competing trade unions; balloting under section 56(1)(d) of the LRA is meant for disputes within unions, not between unions.
Court orders
#- 1.Appeal allowed
- 2.Award of the Industrial Court dated 17th March 2016 set aside and substituted with an order dismissing the 1st respondent's claim
- 3.1st respondent's claim dismissed with costs
- 4.Appellant and 2nd respondent awarded costs of this appeal
- On appeal from
- Industrial Court (now Employment and Labour Relations Court) at Mombasa
- I.C. Cause No. 279 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Industrial Court (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mombasa Maize Millers Limited v Bakery, Confectionery, Food Manufacturing and Allied Workers Union & 1 other", Case Analysis (2018). Civil Appeal No. 79 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/8/eng@2018-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.