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Court of AppealDismissedCivil Appeal E051 of 2021· [2025] KECA 2210 (KLR)

Abyssinia Iron and Steel Limited v Kenya Engineering Workers Union

Court of Appeal
28 November 2025
ASASIKE-MAKHANDIAHOH. A. OMONDIAMA. O. MUCHELULE
3,131 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that once conciliation ends, unions and employers can take wage disputes straight to the Employment and Labour Relations Court.

What this practically means

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Executive summary

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This was a first appeal against the judgment of Radido J. in the Employment and Labour Relations Court at Kisumu, which resolved the two outstanding terms of a collective bargaining agreement between Abyssinia Iron and Steel Limited and the Kenya Engineering Workers Union for 2017-2018: a 12% general wage increase spread at 6% yearly, and sick leave of 45 days on full pay followed by 45 days on half pay per twelve months of service. The appellant contended the ELRC lacked jurisdiction because conciliation was incomplete and no certificate of unresolved dispute was issued; that the CPMU economic report showing financial decline was ignored; and that the sick leave award exceeded the conciliator's recommendation. The Court of Appeal held that the mandatory conciliation process under Part VIII of the LRA was complete once the conciliator issued non-binding recommendations, entitling either party to approach the court; the learned judge therefore properly assumed jurisdiction. On the merits, the court held that expert opinion, including the CPMU report, is persuasive and not binding, and that the trial judge was entitled to adopt the conciliator's 12% recommendation in light of declining profits, 13.78% inflation and 6.9% purchasing-power erosion. The court found no error in fact or law and dismissed the appeal with costs to the respondent, affirming the judgment below in its entirety.

Key legal issues

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01

Jurisdiction of the ELRC over unresolved CBA terms after conciliation

Holding

The ELRC properly assumed jurisdiction; conciliation under Part VIII of the LRA was completed and the conciliator's non-binding recommendations entitled either party to refer the dispute to court.

Reasoning

Article 162(2)(a) establishes the ELRC for employment disputes. Section 74 of the LRA authorises the ELRC to resolve trade disputes referred after failed conciliation. The conciliator issued recommendations that were not adopted by both parties, so the mandatory dispute resolution process was complete and the trial judge properly took jurisdiction.

p. 5
02

Weight to be given to the CPMU economic report

Holding

The trial judge considered but was not bound by the CPMU report; expert opinion is persuasive only and may be rejected on good and cogent grounds.

Reasoning

The judge directed the CPMU to file an economic report and referred to it in his analysis, noting declining profitability and 13.78% inflation. The report lacked productivity analysis. Citing the Safepak principle, the court held expert opinions are not conclusive and may be rejected where not solidly based.

p. 6
03

Justification of the 12% wage increase and 45-day sick leave awards

Holding

The awards were justified: the wage increase mirrored the conciliator's recommendation and was grounded on declining profits, inflation and purchasing-power erosion; sick leave was grounded on industry-wide practice.

Reasoning

The learned judge adopted the conciliator's 12% recommendation after evaluating the appellant's declining profit margins, inflation of 13.78% and purchasing power erosion of 6.9%, and relied on section 15(4) of the ELRC Act to make appropriate orders in the interests of justice. No error in fact or law was detected.

p. 6

Legal principles established

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  • The ELRC may only assume jurisdiction over an economic/CBA dispute after the mandatory conciliation process under Part VIII of the LRA has been completed and non-binding conciliator recommendations issued.
  • Once a conciliator issues non-binding recommendations, either party may approach the court for determination of the unresolved dispute.
  • Courts are not bound by expert opinions; expert evidence is persuasive, not conclusive or binding.
  • In determining wage increment, a court must consider productivity, cost of living and the employer's ability to pay, guided by government Wage Guidelines.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the respondent
On appeal from
Employment and Labour Relations Court at Kisumu
ELRC Case No.31 of 2019
Jurisdiction invoked
First appeal under Rule 31(1) of the Court of Appeal Rules, 2022 from a decision of a superior court exercising original 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, "Abyssinia Iron and Steel Limited v Kenya Engineering Workers Union", Case Analysis (2025). Civil Appeal E051 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2210/eng@2025-11-28

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