Cello Thermoware Limited v Kenya Union of Commercial, Food and Allied Workers
The bottom line
#Kenya's Court of Appeal ruled an employer need not sign a Recognition Agreement unless a union proves, with numbers, it represents a simple majority of unionisable employees.
What this practically means
#Executive summary
#Key legal issues
#Whether the parties had agreed to sign a Recognition Agreement
No binding agreement existed; mere expression of an intention to sign did not amount to an agreement, and the matter remained unresolved as evidenced by the referral certificate
The Conciliator's letter of 24th April 2017 recorded a mutual intention to sign the agreement, but no agreement was ever executed. The dispute had nonetheless been referred to court under section 69 of the Labour Relations Act as unresolved. The Court of Appeal held that without an executed agreement, the letter disclosed nothing establishing that a simple majority had been attained, so the trial judge had no basis to conclude that the requirement was met or to order execution of a Recognition Agreement.
Whether the respondent had attained the simple majority threshold under section 54(1) of the Labour Relations Act
The threshold was not met: 21 registered members as at 3rd August 2016 fell short of a simple majority against either 50 or 42 unionisable employees
The court re-evaluated the evidence afresh. Of the four recruitment notifications produced, only two predated the lodgment of the dispute on 3rd August 2016, yielding 21 registered members. The appellant's claim of only 16 members was unsupported by documents. Against 50 unionisable employees the required number was 26; against the respondent's asserted 42 it was 22; in both computations the statutory requirement failed, so the trial judge erred in ordering execution of a Recognition Agreement and CBA.
The weight to be given to a Conciliator's report on a first appeal
A Conciliator's findings are not binding; a trial court that adopts an unsubstantiated Conciliator's conclusion without interrogating the evidence misdirects itself
The learned judge relied on and adopted the Conciliator's conclusion that a simple majority had been reached, but nothing in the Conciliator's letter substantiated that conclusion, and the judge made no independent computation. By failing to take into account matters it ought to have considered, the trial court reached the wrong decision, justifying fresh re-evaluation of the evidence by the appellate court.
Legal principles established
#- An employer is obliged to recognise a trade union for collective bargaining only where that union represents the simple majority of unionisable employees as at the relevant date
- Whether a simple majority has been achieved is a question of fact requiring an arithmetical computation of union members against unionisable employees as at the time the claim is made; a court may not adopt a Conciliator's unsubstantiated conclusion without interrogating the evidence
- Only unionisable employees, not the total workforce, and only numbers as at the date the claim is made, are to be counted in the recognition computation
- On a first appeal the court is duty bound to re-evaluate the evidence afresh where the trial court misdirected itself
Court orders
#- 1.Appeal allowed
- 2.The order of 31st July 2019 directing the parties to execute a Recognition Agreement and to negotiate, execute and register a Collective Bargaining Agreement set aside
- 3.Costs of the appeal to the appellant
- On appeal from
- Employment and Labour Relations Court
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Employment and Labour Relations Court framework (judgment states: 'This appeal being the first appeal, the court's mandate as set out in Selle vs Association of Motor Boat Co. of Kenya & Others')
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lokapel v Lokapel (Environment and Land Case 27 of 2014) [2026] KEELC 1435 (KLR)[2026] KEELC 1435 (KLR)11 Mar 2026applied
- Krystalline Salt Limited v Kenya Chemical Workers Union[2024] KECA 573 (KLR)24 May 2024followed
- Kenya Chemical Workers Union v Krystalline Salt Limited (Cause 77 of 2019) [2022] KEELRC 1124 (KLR)[2022] KEELRC 1124 (KLR)13 May 2022applied
Cite this brief
#Cite this brief
Caselaw, "Cello Thermoware Limited v Kenya Union of Commercial, Food and Allied Workers", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/54/eng@2022-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.