Karen Blixen Camp Limited v Kenya Hotels and Allied Workers Union
The bottom line
#Kenya's Court of Appeal confirmed that workers and unions can go straight to the Employment Court without first exhausting conciliation, especially when the Labour Minister fails to act.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the preliminary objection that the respondent failed to exhaust the ADR mechanism under Part VIII of the Labour Relations Act, 2007 was well founded in law
- 2.The true construction and intent of Part 8 of the Labour Relations Act, 2007
- 3.Whether the ELRC had jurisdiction to hear the claim where the Minister for Labour failed to act on a referral
Key legal issues
#Whether Part 8 of the LRA imposes a mandatory precondition to approaching the Industrial Court
No; section 62(1) is permissive and Parliament did not intend to oust the court's jurisdiction or place parties at the mercy of the Minister.
Applying ordinary rules of statutory construction, the court held that the language of Part 8 does not admit of compulsion. Section 62(1) uses 'may', and the 'shall' in section 62(3) governs only the 90-day time limit. The purpose was to enhance industrial relations and social dialogue, not to make conciliation a condition precedent to judicial intervention.
Whether the ELRC had jurisdiction where the Minister failed to appoint a conciliator
Yes; the respondent committed no error of law in proceeding directly to court, and mandamus was only one option, not the only one.
The Minister kept mum despite the referral, and the Act makes no provision for such inaction. The court held that mandamus was one option but the respondent could invoke the primary mechanism under section 12 of the LIA and section 87 of the Employment Act, which confer exclusive jurisdiction on the Industrial Court over employment disputes.
Whether the appellant suffered prejudice by the matter proceeding in court
No; there is equality of arms and the court may at any time stay proceedings and refer parties to ADR.
Both parties had filed pleadings and would present their cases with witnesses tested in cross-examination, leading to a judicial decision with finality. The trial court correctly held that the court retains discretion to refer parties to ADR, including conciliation under Part 8, in appropriate cases.
Legal principles established
#- Reporting of a trade dispute to the Minister under section 62(1) of the Labour Relations Act is permissive; a party may proceed directly to the ELRC, and failure to exhaust conciliation does not oust the court's jurisdiction where the failure is not of the claimant's making.
- The word 'shall' in section 62(3) of the LRA relates to the 90-day time limit for reporting dismissal disputes, not to a mandatory duty to report.
- The primary mechanism for resolution of disputes is the courts and tribunals established by or under the Constitution; all other mechanisms are 'alternatives'.
Court orders
#- 1.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Industrial Court of Kenya (now Employment and Labour Relations Court) at Nairobi
- Cause No. 647 of 2011
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over the Industrial Court (Employment and Labour Relations Court)
Relief refused
#Allowance of the appeal and upholding of the preliminary objection
Part 8 of the LRA is permissive, not mandatory; failure to exhaust ADR where the Minister failed to act does not oust the court's jurisdiction
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, we order that the appeal be and is hereby dismissed with costs to the respondent.
There is no compulsion for the referral, and it was certainly not the intention of Parliament to confine parties into a straight jacket, place them at the mercy of the Minister, or oust the jurisdiction of the court.
Being an alternative means of dispute settlement, failure to exhaust them, particularly where such failure is not of the claimant's making, cannot be a ground for the Court to decline jurisdiction.
the word 'shall' in that section relates to the time limit and not the fact of reporting to the Minister, as erroneously construed by counsel for the appellant.
In view of the foregoing, we find no basis for the PO raised by the appellant and agree with the trial court that it was not meritorious. It was properly rejected and we so find.
Issues in the judgment
#Section 87(1) of the Employment Act is quoted twice with the same subsection number '(1)' for what appears to be subsection (2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karen Blixen Camp Limited v Kenya Hotels and Allied Workers Union", Case Analysis (2018). Civil Appeal No. 100 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/847/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.