Kenya Hotels and Allied Workers Union v Merryland Hotel Ltd [2017] KEELRC 1621 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Claimant represented a simple majority of the Respondent's unionisable employees so as to qualify for recognition under Section 54
Yes - comparing the union's check-off forms of 2nd-4th September 2014 with the Respondent's list of 30 employees, 16 employees had been recruited, representing 53.33%, more than a simple majority
The court took the documents filed on 16th October 2014 pursuant to the court's order for fresh recruitment as the basis for assessment. Cross-checking the 19 names on the union's check-off form against the Respondent's list of 30 employees, 16 names appeared in both lists, yielding 53.33%. The Respondent did not rebut the claim that some of the 30 were non-unionisable, so the true percentage among unionisable staff could be higher.
Whether the claim was overtaken by events due to changes in the workforce and lapse of time
No - the right to union membership is constitutional and cannot lapse; the material date is when recognition was sought, and recruitment is continuous
The court held that union membership is a constitutional right that cannot lapse, that the relevant assessment date is when the union sought recognition, and that recruitment is a continuous exercise so membership numbers are not expected to be constant. The Respondent's failure to produce evidence of the claimed retrenchments also undermined its 'overtaken by events' argument and supported the claimant's allegation of frustration.
Whether the conciliator's report finding only 8 willing members could defeat the claim
No - the report was unreliable because only 8 unionisable staff were present at the exercise, and the Act requires actual membership, not willingness
The court found the conciliator's report unreliable as a measure of membership because the Respondent did not explain where the remaining 27 unionisable employees were when only 8 were present. Further, statutory recognition depends on actual membership, and the union had presented a list of actual members. The Respondent also did not deny accusations of frustrating recruitment through dismissals and retrenchments.
Whether the Respondent should be compelled to deduct and remit union dues under Section 48
Yes - the Respondent gave no reason for never complying with the check-off instructions even for members whose membership it did not contest
The court found the Respondent had never complied with the check-off forms despite contesting nothing as to some employees' membership. Since the Respondent offered no justification for non-compliance with its Section 48 obligations, the court ordered deduction and remittance of dues to the union's designated account from February 2017.
Legal principles established
#- A trade union's entitlement to recognition is assessed as at the date it sought recognition from the employer, not the date of filing suit or of the hearing, because employment and recruitment are dynamic
- The right to membership of a trade union is a constitutional right of every worker and cannot lapse
- Section 54 of the Labour Relations Act imposes a mandatory obligation on an employer to recognise a union representing a simple majority of unionisable employees
- The Act requires proof of actual membership, not mere intention or willingness to join
Court orders
#- 1.The Respondent to sign a recognition agreement with the Claimant within 45 days from the date of Judgment
- 2.The case to be fixed for mention in 60 days for parties to confirm having signed the recognition agreement
- 3.The Respondent to deduct and remit union dues to the Claimant's designated account with effect from February 2017
- Jurisdiction invoked
- Jurisdiction under the Labour Relations Act, 2007 over trade disputes (recognition and check-off under Sections 48, 54 and 62); dispute reported to the Minister for Labour and referred to the Court after failed conciliation
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kenya Hotels and Allied Workers Union v Merryland Hotel Ltd [2017] KEELRC 1621 (KLR)", Case Analysis (2017). Cause No. 197 of 2013 (formerly Industrial Cause No. 1536 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1621/eng@2017-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.