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ELRCDismissedApplication dated 28th May 2015 (consolidated ruling also applies to Cause No. 931 of 2015)· [2015] KEELRC 174 (KLR)

Kenya Union of Printing, Publishing, Paper Manufacturers, Pulp and Packaging Industries v Africa Polysack Limited [2015] KEELRC 174 (KLR)

Employment and Labour Relations Court
13 November 2015
ANAbuodha J. N.
1,192 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to force an employer to recognise a union before trial, because the union's majority membership was still disputed.

What this practically means

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Executive summary

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The claimant union, through its Secretary General Rajabu W. Mwondi, applied on 28th May 2015 for orders compelling the respondent to sign a formal recognition agreement to pave the way for negotiating a Collective Bargaining Agreement, and to effect the check-off system under section 48 of the Labour Relations Act. The union deponed that it had recruited 112 unionisable employees, exceeding the statutory 51% simple-majority threshold, and that after failed meetings and conciliation before a Ministry of Labour conciliator appointed on 21st October 2014, the respondent denied the union's numbers, produced revocation letters and allegedly intimidated members into revoking membership. The respondent initially failed to file a replying affidavit within the time granted on 17th June 2015, prompting the Court to indicate it would rule on the application without the respondent's input. On 12th August 2015 the respondent applied for review and extension of time, which the Court allowed on 5th October 2015 by deeming the replying affidavit and memorandum of response filed within time. On the main application, the Court held that the recognition and check-off prayers were substantive prayers mirroring those in the main claim, grantable only after full trial. Noting the conciliator's view that the union had not met the section 54(1) simple-majority threshold, and the union's contest of that finding, the Court declined the interlocutory orders and directed the claim to trial on merit. The ruling was made applicable to Cause No. 931 of 2015 against Styroplast Limited on the basis of similar facts and issues. No costs order was recorded.

Key legal issues

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01

Whether recognition and check-off orders may issue interlocutorily

Holding

No - they are substantive prayers reserved for trial, and the recognition dispute is unresolved.

Reasoning

The Court held that the prayers for a recognition agreement and check-off mirror the main claim's prayers. Since there is a live dispute whether the union attained the statutory simple majority under section 54(1), and the conciliator found it had not, granting the orders interlocutorily would determine a substantive issue without trial. The Court therefore declined the application and directed the claim to full trial.

p. 2
02

Whether the respondent's late filing should be excused

Holding

Yes - the replying affidavit and memorandum of response were deemed filed within time.

Reasoning

The respondent filed an application on 12th August 2015 seeking extension of time and deeming of its replying affidavit and memorandum of response. The Court considered it merited and allowed it to that extent, while proceeding to rule on the claimant's application without submissions from both parties as earlier directed.

p. 2

Legal principles established

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  • Recognition under section 54(1) of the Labour Relations Act requires a simple majority of unionisable employees, and where that threshold is disputed and a conciliator has found it unmet, the Court will not grant recognition orders at interlocutory stage but will direct the claim to trial.
  • Substantive prayers such as signing a recognition agreement and effecting check-off cannot be granted on an interlocutory application; they await full trial.

Court orders

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  1. 1.The respondent's application dated 12th August 2015 allowed to the extent that the replying affidavit and memorandum of response are deemed filed within time
  2. 2.The application dated 28th May 2015 by the claimant Union is declined
  3. 3.The claim is directed to proceed to trial on merit
  4. 4.The ruling applies to cause number 931 of 2015 between the claimant Union and Styroplast Limited since the issues and facts are similar

Authorities

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Legislation

  • Labour Relations Act, 2007section 48
  • Labour Relations Act, 2007section 54(1)
Jurisdiction invoked
Labour Relations Act, 2007 (sections 48 and 54(1)); Employment and Labour Relations Court jurisdiction over trade disputes

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 Union of Printing, Publishing, Paper Manufacturers, Pulp and Packaging Industries v Africa Polysack Limited [2015] KEELRC 174 (KLR)", Case Analysis (2015). Application dated 28th May 2015 (consolidated ruling also applies to Cause No. 931 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/174/eng@2015-11-13

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