KENYA UNION OF COMMERCIAL, FOOD AND ALLIED WORKERS V UKWALA SUPERMARKET LTD [2013] KEELRC 457 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction absent certificate of unresolved dispute
The point in limine on jurisdiction was dismissed; an application under Section 74(a) may be entertained without a certificate under Section 69
The Respondent argued that Sections 74(a), 62 and 69 of the Labour Relations Act and Rule 6(1)(b) of the Industrial Court (Procedure) Rules 2010 required a conciliator's report and certificate, or an affidavit explaining its absence. The Court held that an application under Section 74(a) need not await the certificate and that it had jurisdiction over both the Application and the Claim as filed.
Limitation under Section 90 of the Employment Act
The claim was not time-barred; the cause of action arose on 6th July 2011 when the Respondent declined to meet the union
The recruitment and alleged victimization occurred between 2008 and 2011, and the conciliator's last report of 11th December 2009 fell within the three-year period. The Court thus fixed the accrual of the cause of action at the employer's refusal of 6th July 2011.
Execution of check-off forms by allegedly non-official union officers
The objection was dismissed as not a true point of law
The Respondent contended the check-off forms violated Section 35(6) of the Labour Relations Act because signed by non-officers, and that Boniface M. Kavuvi lacked authority. The Court found the objection required examination of the facts and could not be determined as a preliminary point of law.
Verification of 51% membership
The Court opted for a practical, supervised verification exercise rather than resolving the dispute on affidavits
Upon perusal of documents filed on 4th September 2012, the Court considered that verifying the union's current membership would facilitate a pro-active resolution rather than engaging in technicalities. It directed a verification under the Minister for Labour with a report within 30 days, and interim deduction of dues from undisputed check-off forms.
Legal principles established
#- An application under Section 74(a) of the Labour Relations Act need not await a certificate of conciliation; the court's jurisdiction is not defeated by its absence
- For limitation purposes under Section 90 of the Employment Act, the cause of action for refusal of recognition arises when the employer declines to meet the union to sign a recognition agreement
- Objections that require resolution of facts, such as allegations of improper execution of check-off forms, are not true points of law for determination in limine
Court orders
#- 1.A verification exercise to be conducted under the supervision of the Minister for Labour and/or his appointed representative to verify whether or not the Claimant/Applicant has attained 51% membership of the unionisable employees of the Respondent, with a report filed with the Court within 30 days from the date of the order
- 2.The Respondent directed to deduct and remit union dues from all employees who have requested deductions through the signed check-off forms not in dispute
- 3.The Court to make further directives upon receipt of the Minister's Report
- 4.The preliminary objections in limine dismissed
- Jurisdiction invoked
- Section 74(a) of the Labour Relations Act, 2007 (read with Sections 62, 69 and 35(6)); Industrial Court (Procedure) Rules 2010, Rule 6
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENYA UNION OF COMMERCIAL, FOOD AND ALLIED WORKERS V UKWALA SUPERMARKET LTD [2013] KEELRC 457 (KLR)", Case Analysis (2013). Application under Certificate of Urgency dated 28th July 2011, filed 9th August 2011; Memorandum of Claim dated 28th July 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/457/eng@2013-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.