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Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment· [2023] KECA 1493 (KLR)

Kenya Chemical & Allied Workers Union v Kenya Plantation & Agricultural Workers Union & 2 others

Court of Appeal of Kenya
8 December 2023
2,587 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that unions can only seek recognition in the sector their employer actually operates in, not just any sector.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Kisumu against a judgment of the Employment and Labour Relations Court (Maureen Onyango, J., delivered by M. N. Nduma, J. on 6th December 2018). The 1st respondent, Kenya Plantation and Agricultural Workers Union, had obtained declarations that the appellant union's activities at Homalime Kenya Limited interfered with its rights to freedom of association and collective bargaining, and an injunction restraining the appellant from recruiting or demanding dues from the company's employees, there being an existing Recognition Agreement and CBAs between the 1st respondent and the employer. The appellant contended that it had recruited a majority of the employees and that the trial court had disregarded the employees' freedom of association, arguing that the employer straddled both the agricultural and chemical sectors. Kiage, JA, delivering the judgment of the Court with which Mumbi Ngugi and Joel Ngugi JJ.A agreed, restated the first appellate duty to re-evaluate evidence and reached the same conclusion as the trial judge. Section 54(2) and (8) of the Labour Relations Act require a simple majority of unionisable employees within the sector in which the employer operates, and the demarcation report showed the employer largely operated in the agricultural sector. The appellant union's constitution did not cover agricultural workers, and the use of lime in agricultural activities did not transform the employer into a chemical-industry entity. The Court held that limiting employees to the sector union was reasonable and did not violate freedom of association. The appeal was dismissed with no order as to costs, there being no appearance for the respondents.

Key legal issues

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01

Sector classification for purposes of trade union recognition under section 54 of the LRA

Holding

The 2nd respondent operated within the agricultural sector; use of lime in its agricultural activities did not convert it into a chemical-industry entity, so the appellant union was not eligible to recruit its employees.

Reasoning

Section 54(2) and (8) of the LRA require recognition of a union representing a simple majority of unionisable employees within the employer's sector, and direct the court to consider the sector in which the employer operates. The trial judge considered both unions' constitutions and the County Labour Officer's demarcation report, which showed the employer largely operated in agriculture. The limitation of employees to the 1st respondent, the sector union, was reasonable and did not violate freedom of association.

p. 5
02

Scope of the first appellate court's duty

Holding

As the first appellate court, the Court had an obligation to reconsider and re-evaluate the evidence and reach independent conclusions.

Reasoning

Relying on Selle v Associated Motor Boat Co Ltd and Abok James Odera v John Patrick Machira, the Court restated the classic first appellate duty to re-evaluate the evidence and draw its own conclusions, though it need not defer to the trial judge's factual findings. On re-evaluation, the Court reached the same conclusion as the trial judge and found no basis for interference.

p. 5
03

Whether sector-based limitation of union membership violates freedom of association

Holding

It does not; restricting employees to a union in their sector is rational and not a constitutional violation.

Reasoning

The Court suggested to counsel that restricting employees to a union in their sector, as the trial judge did, is rational and not a violation of the Constitution; counsel agreed. An employee's freedom of association is necessarily limited by reference to the industry in which the employee works, consistent with section 54(8) of the LRA directing courts to consider the employer's sector.

p. 4

Legal principles established

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  • A trade union seeking recognition by an employer must represent a simple majority of unionisable employees within the sector in which the employer operates, and courts determining recognition disputes must consider the sector in which the employer operates.
  • An employee's freedom to join a union of his choice is necessarily limited by reference to the industry or sector in which the employee works.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs, there being no appearance for the respondents
On appeal from
Employment and Labour Relations Court
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over the Employment and Labour Relations Court (the judgment does not cite a specific constitutional or statutory provision for its jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Chemical & Allied Workers Union v Kenya Plantation & Agricultural Workers Union & 2 others", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1493/eng@2023-12-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.