Kenya Union of Entertainment and Music Industry Employees v Bomas of Kenya Limited [2018] KEELRC 767 (KLR)
The bottom line
#A Kenyan union lost its case because it skipped mandatory conciliation and had lost majority membership, so its rival's CBA stands.
What this practically means
#Executive summary
#Key legal issues
#Loss of majority representation and right to recognition
The Claimant lost 111 of 136 unionisable employees to KUDHEIHA and thereby lost the right to continued recognition under section 54(1)
Section 54(1) conditions recognition on a simple majority. Check-off forms signed in September 2015 and the Conciliator's letter of 25.1.2016 verified that the Claimant had lost majority membership. The Claimant failed to use the statutory mechanism, so she gave up and lost the right to represent the respondent's unionisable staff.
Prematurity and competence of the suit
The suit was premature and incompetent because the recognition dispute was never referred to conciliation under section 54(6) and (7)
The conciliation lodged in 2014 concerned refusal to review the expired 2012-2014 CBA, not refusal to recognise or cancellation of the recognition agreement. Section 54(6) requires reference to conciliation and only then to the Industrial Court under a certificate of urgency. Bypassing that route renders the suit incompetent.
Service of court orders and contempt
The orders of 8.12.2015 and 25.10.2016 were never served or served too late, so the respondent and KUDHEIHA were not in contempt
There was no affidavit of service for the 8.12.2015 order and the Claimant did not rebut the respondent's contention. The 25.10.2016 order was served on 26-27.10.2016, after the CBA was registered on 26.10.2016, with no indication Abuodha J. was aware of it before registration.
Validity of the CBA with KUDHEIHA
The CBA signed on 13.10.2016 and registered on 26.10.2016 is valid and binding until expiry
The respondent was bound under section 54(1) to recognise KUDHEIHA once it recruited the vast majority of unionisable staff. The CBA was concluded and registered without knowledge of the unserved or late-served orders, Ministry approval was obtained, and registration by Abuodha J. followed, so the CBA stands.
Legal principles established
#- An employer must recognise a trade union for collective bargaining where it represents a simple majority of unionisable employees; conversely a union that loses that majority loses recognition
- Where a clear procedure for redress of a grievance is prescribed by the Constitution or an Act of Parliament, that procedure must be strictly followed
- The first port of call for a trade union challenging cancellation of recognition is the Conciliator, not the Court
Court orders
#- 1.The suit is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Labour Relations Act, section 54; Industrial Court (ELRC) jurisdiction under section 54(7) for unresolved recognition disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Entertainment and Music Industry Employees v Bomas of Kenya Limited [2018] KEELRC 767 (KLR)", Case Analysis (2018). Claim filed 20/11/2015 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/767/eng@2018-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.