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ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 976 (KLR)

Kenya Union Of Entertainment And Music Industry Employees v Sports Stadia Management Board [2015] KEELRC 976 (KLR)

Employment and Labour Relations Court
7 May 2015
ANAbuodha J. N.
681 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 protected union members from being sacked for union affiliation but declined to force an employer to keep honouring an expired collective agreement.

What this practically means

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Executive summary

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This was an interlocutory application before the Employment and Labour Relations Court at Nairobi seeking (a) restraint of the respondent employer from victimising or terminating employees on grounds of trade union activities or affiliation, and (b) an order compelling continued implementation of the existing Collective Bargaining Agreement until a new one is determined by the Court. The applicant union, through Mr. Mucuha, complained that the respondent refused to fully negotiate a new CBA, incited workers to withdraw from the union, and continued deducting dues inconsistently, relying on section 49(6) of the Labour Relations Act that a CBA continues to bind parties at commencement, including those who resigned. The respondent, through Mr. Ouma, contended the dispute had been resolved for negotiation between the unions, that the CBA lapsed on 30th September 2013, and that the applicant lacked the requisite simple majority to mandate negotiations. The Court framed the classic interlocutory tests of prima facie case and balance of convenience. It found the dispute over the applicant's majority status raised serious factual and legal questions meriting trial, establishing a prima facie case. The Court granted an injunction restraining termination based on union membership or affiliation but refused to compel continued implementation of the expired CBA, holding that remedy could follow at trial through remittances and recovery directions. Judgment delivered by Abuodha J. N. on 7th May 2015 at Nairobi. No costs order was stated.

Key legal issues

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01

Whether refusal to negotiate a new CBA and alleged incitement justify an interlocutory injunction

Holding

A prima facie case with probability of success was demonstrated; an injunction against termination on grounds of union membership/affiliation was granted

Reasoning

The dispute turns on whether the applicant has the requisite simple majority to negotiate a new CBA. Those are serious factual and legal questions meriting determination at trial, satisfying the prima facie case threshold. However, the Court refused to mandate continued implementation of the expired CBA, preserving the remedy of remittances and directions if the applicant succeeds at trial.

p. 2
02

Whether the Court should compel continued implementation of the existing CBA pending trial

Holding

Refused, as this is the very substance of the dispute

Reasoning

The applicant accuses the respondent of refusing to negotiate while the respondent maintains the applicant has lost the simple majority needed for negotiations. Compelling implementation would pre-empt the main trial; arrears and recovery directions can be ordered if the applicant prevails.

p. 2

Legal principles established

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  • A CBA continues to bind parties who were party to it at commencement, including members who have resigned from the trade union, per section 49(6) of the Labour Relations Act (as urged by counsel)
  • Interlocutory injunction test: prima facie case with probability of success and balance of convenience

Court orders

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  1. 1.The respondent is restrained from terminating the services of any employee on the basis of membership of or affiliation to the applicant union
  2. 2.The Court declined to order continued implementation in totality of the existing Collective Bargaining Agreement until the main suit is determined

Authorities

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Legislation

  • Labour Relations Actsection 49(6)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Relations Act and the Employment Act over trade union and Collective Bargaining Agreement 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 Entertainment And Music Industry Employees v Sports Stadia Management Board [2015] KEELRC 976 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/976/eng@2015-05-07

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