Kenya Petroleum Oil Workers Union v Giefcon Limited & another [2015] KEELRC 676 (KLR)
The bottom line
#A Kenyan employment court dismissed a union's recognition claim because it had no current members working for the employers involved.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant Union merits recognition from either Respondent under Section 54 of the Labour Relations Act 2007
No; recognition requires a simple majority of current unionisable employees represented by the union and a pre-existing employment relationship, neither of which was shown
Section 54 requires the union to represent a simple majority of unionisable employees. The purpose of recognition is collective bargaining for an existing bargaining unit. The 35 members recruited in 2010 had either withdrawn membership in writing or had their contracts terminated by 2011, and the Claimant's own submissions suggested members' contracts were terminated and members feared job loss. Neither Respondent currently employed members of the Claimant, so an order for recognition would be purposeless.
Whether the 2nd Respondent was the employer of the employees claimed to be Claimant members
No; the 1st Respondent was the employer under the Service Outline Agreement, contracting, controlling and remunerating the employees to the exclusion of the 2nd Respondent
The Service Outline Agreement specified the 1st Respondent was an independent contractor, not an agent of the 2nd Respondent. The 1st Respondent supervised and paid the employees, their salaries, employment taxes and contributions including trade union dues. The Claimant admitted in its pleadings that the 1st Respondent operated as a contractor and directed its check-off forms and draft recognition agreement only to the 1st Respondent.
Whether trade union dues should be deducted and remitted under Sections 48 and 19 of the Labour Relations Act and Employment Act
No; although dues do not depend on recognition, the employees voluntarily recanted their membership on 12th November 2010 and the Claimant adduced no evidence of involuntary forfeiture
The court held payment of dues does not depend on recognition, and an employer receiving check-off forms should deduct and remit. However, the employees wrote to the employer two days after the check-off forms were forwarded, recanting membership. Section 4 of the Labour Relations Act allows association and dissociation, and the court could not assume withdrawal was involuntary. The shop steward Otwenyo, who allegedly lost his job for refusing to withdraw, was not called as a witness.
Whether the document R.06 introduced through closing submissions could be relied on
No; it was expunged from the record as offending Rules 17 and 26para 1 of the Industrial Court [Procedure] Rules 2010
The court has consistently emphasized that closing submissions are not an avenue for adding evidence. The document, in the nature of evidence and a second draft recognition agreement, was introduced by the Claimant in its closing submissions, contrary to Rules 17 and 26para 1 of the Industrial Court [Procedure] Rules 2010, and was accordingly expunged, following KUDHEIHA v. NORTH COAST BEACH HOTEL.
Legal principles established
#- An employer is obliged to recognise a trade union under Section 54 of the Labour Relations Act 2007 only where the union represents a simple majority of unionisable employees, which requires current employees and an existing collective bargaining unit
- Closing submissions are not an avenue for parties to adduce additional evidence or material
- Payment of trade union dues does not depend on an employer's grant of recognition; an employer who receives check-off forms should deduct and remit dues so long as deductions do not violate wage protection under Part VI of the Employment Act 2007
- Employees are free to associate and dissociate from a trade union under Section 4 of the Labour Relations Act, and withdrawal is presumed voluntary absent contrary evidence
- Outsourcing companies cannot be called to account on trade union recognition and collective bargaining absent a law specifically regulating the outsourcing industry on the subject
- The court may consider the full array of remedies available to a party based on the evidence, even where not expressly pleaded
Court orders
#- 1.Expunged from the record the document marked R.06 introduced by the Claimant in its Closing Submissions
- 2.Expunged from the record the 1st Respondent's Submissions filed outside the stipulated period without leave
- 3.Dismissed the Claim
- 4.Directed that each party bears its own costs (no order on costs)
- Jurisdiction invoked
- Dispute referred to the Industrial Court under Rule 27[1][a] of the Industrial Court [Procedure] Rules 2010 concerning a recognition agreement and trade union dues under the Labour Relations Act 2007
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Petroleum Oil Workers Union v Stratostaff East Africa Ltd[2026] KEELRC 2523 (KLR)24 Sept 2026distinguished
- Kenya Plantation & Agricultural Workers Union v Big Flower Limited (Employment and Labour Relations Cause 24 of 2020) [2023] KEELRC 1507 (KLR)[2023] KEELRC 1507 (KLR)13 Jun 2023
- Phillip Ateng Oguk & 27 others v Westmont Power [Kenya] Limited & another [2015] KEELRC 118 (KLR)[2015] KEELRC 118 (KLR)9 Dec 2015applied
- Phillip Ateng Oguk & 27 others v Westmont Power [Kenya] Limited & another [2015] KEELRC 34 (KLR)[2015] KEELRC 34 (KLR)9 Dec 2015applied
Cite this brief
#Cite this brief
Caselaw, "Kenya Petroleum Oil Workers Union v Giefcon Limited & another [2015] KEELRC 676 (KLR)", Case Analysis (2015). Cause Number 93 of 2014 (Originally Industrial Court at Nairobi, Cause Number 1465 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/676/eng@2015-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.