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ELRCDismissedCause No 82 of 2018· [2018] KEELRC 36 (KLR)

Kenya County Government Workers Union v Nakuru County Government & another [2018] KEELRC 36 (KLR)

Employment and Labour Relations Court
14 June 2018
2,568 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that a union can sue a county government without a recognition agreement and without first going through the Labour Minister.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nakuru (M. Mbaru, J) determines a Notice of Preliminary Objection dated 24th April 2018 raised by the respondents, the County Government of Nakuru and the Nakuru County Public Service Board, against a claim by the Kenya County Government Workers Union for enforcement of a registered collective agreement (RCA No.21 of 2013), including non-deduction and non-remittance of trade union dues under section 48 of the Labour Relations Act, 2007. Three issues were framed: whether non-recognition of the union was fatal to the suit; whether the union should first have invoked section 62 (reporting of trade disputes to the Minister); and whether the Public Service Board was improperly joined. The court held that recognition under section 54 depends on whether the union holds a simple majority of unionisable employees, a question entangled with transitional provisions and the prior recognition with defunct local authorities, requiring evidence at trial. Section 62 was held not mandatory and incapable of ousting the court's original jurisdiction under Article 162(2) of the Constitution. The 2nd respondent was held a necessary party given its statutory functions over county staff. The preliminary objection was dismissed with costs in the cause. Delivered 14th June 2018.

Key legal issues

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01

Whether lack of a recognition agreement with the 1st respondent renders the suit fatally defective under section 54 of the Labour Relations Act

Holding

No - recognition depends on facts (simple majority membership, termination clauses of prior recognition, transitional provisions) requiring evidence at trial

Reasoning

The court held that section 54(1) requires recognition where a union represents a simple majority of unionisable employees. The claimant enjoyed recognition with defunct local authorities and has members among the respondents' employees. Whether the claimant retains a simple majority, and the effect of transitional provisions and the prior recognition agreement's termination clauses, are evidentiary matters that cannot be resolved on a preliminary objection.

p. 3
02

Whether the suit is premature for non-compliance with section 62 of the Labour Relations Act (reporting to the Minister)

Holding

No - section 62 is not mandatory and does not oust the court's jurisdiction

Reasoning

The court found section 62 permissive rather than mandatory; reporting a trade dispute to the Minister for conciliation is best practice but not a precondition. The court's jurisdiction under Article 162(2) subsists even where a complaint is filed with the Minister under section 62, so the claimant's failure to exhaust conciliation did not defeat the suit.

p. 3
03

Whether the 2nd respondent (County Public Service Board) is improperly joined

Holding

No - the Board is a necessary party given its statutory functions

Reasoning

Under sections 57 and 59 of the County Government Act, 2012, the Board establishes and abolishes offices, appoints persons, and exercises disciplinary control over county public service staff on behalf of the county government. These functions place it directly in contact with the claimant's members, making it a crucial and relevant party for effectual determination of the dispute.

Legal principles established

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  • Section 62 of the Labour Relations Act does not oust the court's original jurisdiction over trade disputes filed by a trade union.
  • Recognition of a trade union under section 54 depends on whether it represents a simple majority of unionisable employees, a question requiring evidence.

Court orders

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  1. 1.The respondents' Notice of Preliminary Objection dated 24th April 2018 is dismissed
  2. 2.Costs should be in the cause

Authorities

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Legislation

  • Labour Relations Act, 2007section 54
  • Labour Relations Act, 2007section 62
  • Labour Relations Act, 2007section 73
  • Labour Relations Act, 2007section 48
  • Labour Relations Act, 2007section 59
  • Labour Relations Act, 2007section 2
  • County Government Act, 2012sections 57, 59
  • Constitution of Kenya, 2010Articles 162(2), 235
  • Civil Procedure Rules, 2010Order 1 Rule 3
  • Local Government Act, Cap 265repealed

Cases cited (11)

  • Mukhisa Biscuit Manufacturers Co. Ltd versus West End Distributors Co. Ltd
    [1969] E.A
  • Kenya Council of Employment Migration Agencies versus Nyamira County Government & 10 others
    [2015] eKLR
  • Nairobi Metropolitan PSV Sacco's Union Limited & 25 others versus County of Nairobi Government & 3 Others
    [2013] eKLR
  • Communications Workers' Union versus Safaricom Ltd
    [2014] eKLR
  • Kenya Government Workers Union [previously the Kenya Local Government Workers Union] Uasin Gishu Branch & another versus Eldoret Water and Sanitation
    [2015] eKLR
  • Rift Valley Railways Workers Union versus Building and Construction Workers Union & 3 others
    [2016] eKLR
  • Bakery, Confectionary, Food Manufacturing & Allied Workers Union (Kenya) versus Medina Bakery Ltd
    [2016] eKLR
  • Kenya Union of Commercial Food & Allied Workers versus Water Resources Management Authority & Another
    [2015] eKLR
  • Kenya Commercial Food and Allied Workers Union versus Botanical Extracts (EPZ) Ltd, Cause No.2118 of 2012
  • Transport Workers Union versus Saudi Arabia Airlines
    [2016] eKLR
  • Kenya Union of Printing, Paper Manufacturers and Allied Workers versus Packaging Industries Limited & another
    [2014] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution, 2010 (employment and labour relations jurisdiction)

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 County Government Workers Union v Nakuru County Government & another [2018] KEELRC 36 (KLR)", Case Analysis (2018). Cause No 82 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/36/eng@2018-06-14

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