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ELRCDismissedCause No. 60 of 2000· [2002] KEELRC 23 (KLR)

KENYA SHOE & LEATHER WORKERS’ UNION v G. KIHARA CUSHION MAKERS [2002] KEELRC 23 (KLR)

Industrial Court of Kenya
21 August 2002
CCCharles P. ChemmuttutAKA.K. KerichHGH.B.N. Gicheru
1,101 words in judgment
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The bottom line

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A Kenyan union lost its recognition bid because it never served check-off forms proving most workers had joined it.

What this practically means

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Executive summary

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This Industrial Court award determined a trade dispute referred to the Court by the Minister for Labour under Section 8 of the Trade Disputes Act, Cap. 234, concerning the Union's demand for a recognition agreement with G. Kihara Cushion Makers, a partnership engaged in cushion and upholstery making and repairs in Kariobangi, Nairobi. The Union claimed it had recruited 10 out of 12 (83.3%) unionisable employees in February 1997, rising to 17 out of 25 (68%) by February 2001, that no rival union claimed representation, and that it was the appropriate union to represent the employees. The firm conceded the Union might be the appropriate union but denied that the Union had achieved a simple majority, pointing to the Union's failure to forward any signed check-off forms to the firm or to the Minister's Investigator, Mr. J.N. Kinyua. The Minister's report of 30th October 1998 had found no proof of recruitment, no bona fide members, and recommended that recognition be withheld pending a fresh recruitment drive. The firm accepted that recommendation; the Union rejected it, alleging tribal bias. The Court found that the Union admittedly never served the check-off forms as required by Section 46 of the Act, making it impossible to establish fulfilment of the conditions for recognition under Section 5(2). The Court upheld the Minister's findings and rejected the Union's demand for recognition as incompetent and baseless. Both Members concurred with the decision of Chemmuttut, J.

Key legal issues

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01

Proof of simple majority membership for recognition

Holding

Recognition requires proof of a simple majority of unionisable employees, evidenced by check-off forms served on the employer; the Union produced none and thus failed to establish entitlement to recognition.

Reasoning

The Union claimed it had recruited 10 out of 12 or 83.3% of employees in February 1997, and 17 out of 25 (68%) by February 2001. The Minister's investigation found no proof of recruitment and no check-off forms despite several requests. The Union's Secretary General conceded the forms were never forwarded, allegedly for fear of victimisation. Without the check-off forms required under Section 46, the statutory conditions in Section 5(2) could not be shown to have been fulfilled, and 10 out of 25 would not in any event be a simple majority.

p. 2

Legal principles established

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  • Failure to serve check-off forms under Section 46 of the Trade Disputes Act makes it impossible to establish that the conditions for recognition under Section 5(2) have been fulfilled

Court orders

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  1. 1.The Union's demand for recognition is rejected for now as incompetent and baseless
  2. 2.The Minister's findings and recommendation (that the Union should not for the time being be accorded recognition but should embark on an active recruitment drive and seek recognition afresh) are upheld
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234 (Minister's reference of a trade dispute to the Court)

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 SHOE & LEATHER WORKERS’ UNION v G. KIHARA CUSHION MAKERS [2002] KEELRC 23 (KLR)", Case Analysis (2002). Cause No. 60 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2002/23/eng@2002-08-21

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