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ELRCDismissedELRC Cause No. 205 of 2015 (as per the pleadings referenced)· [2018] KEELRC 1665 (KLR)

Kenya Shoe and Leather Workers Union v Modern Soap Factory [2018] KEELRC 1665 (KLR)

Employment and Labour Relations Court
18 January 2018
OMOnesmus MakauLNLinnet Ndolo
2,249 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that parties who accept a conciliator's recommendations cannot later sue over the same dispute.

What this practically means

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Executive summary

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The Claimant union sued the Respondent employer seeking an order compelling deduction and remittance of union dues and a direction that the Respondent sign a Recognition Agreement under section 54 of the Labour Relations Act. The Respondent filed a preliminary objection and defence, and the court had already dismissed the preliminary objection in a ruling of 14 September 2015 on the basis that the conciliation proceedings had lapsed under section 69(b) of the LRA. The suit was disposed of by written submissions on the pleadings. The parties had earlier submitted a trade dispute to a conciliator appointed by the Labour Cabinet Secretary, who on 9 March 2015 found that the union had not recruited a simple majority of the unionisable staff and recommended continued recruitment, while directing the employer to deduct and remit union dues for voluntary members. The court framed three issues: the effect of conciliation before moving to court, entitlement to recognition under section 54, and whether the Respondent failed to deduct and remit dues. The court held that although the conciliation formally lapsed without a signed agreement or certificate, both parties impliedly accepted and benefited from the conciliator's recommendations - the Claimant demanded compliance and the Respondent uncontestedly complied on dues. Following Wario Gorise v Vicky Nyaithiru Kabetu, parties who voluntarily submit to conciliation to its finality are bound by the conciliator's recommendations. The court dismissed the entire suit with no order as to costs, directing the parties to comply with the conciliator's recommendations on recruitment and dues remittance.

Key legal issues

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01

Effect of conciliation before moving to Court

Holding

The dispute was resolved by the parties' implied acceptance of the conciliator's recommendations, barring the suit.

Reasoning

Under section 68 of the LRA a dispute is settled only by a signed written agreement, and under section 69 it lapses after 30 days or by certificate. Here no agreement was signed and no certificate issued, so the conciliation lapsed automatically. However, both parties complied with and benefited from the conciliator's recommendations, implying acceptance of the outcome. Having chosen to be bound, they could not turn to litigation.

p. 3
02

Entitlement to recognition under section 54 of the LRA

Holding

The Claimant had not achieved a simple majority of the unionisable staff as required for recognition.

Reasoning

The conciliator found the union had not recruited a simple majority of the Respondent's unionisable workforce and recommended continued recruitment. The Claimant never contested the Respondent's submission on the member numbers, and the court directed the union to put more effort to achieve the required simple majority before recognition.

p. 2

Legal principles established

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  • A party who voluntarily submits to conciliation and benefits from its outcome is bound by the conciliator's recommendations and cannot institute litigation on the same dispute.

Court orders

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  1. 1.The entire suit is dismissed with no order as to costs.
  2. 2.Parties directed to comply with the conciliator's recommendations: (a) the union to put more effort to achieve the required simple majority to be accorded a recognition agreement; (b) the employer to deduct union subscriptions from wages of those who have voluntarily joined the union and submit the same accordingly.

Authorities

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Legislation

  • Labour Relations Actsection 48
  • Labour Relations Actsection 50
  • Labour Relations Actsection 54
  • Labour Relations Actsection 62
  • Labour Relations Actsection 68
  • Labour Relations Actsection 69(b)
  • Labour Relations Actsection 48(2)

Cases cited (2)

  • Wario Gorise -v- Vicky Nyaithiru Kabetu
    [2013] eKLR
  • Elizabeth Wanjiru Njogu Vs Kangei Nyakinyua Building Co. Limited
Jurisdiction invoked
Jurisdiction under the Labour Relations Act over trade disputes reported under section 62 of the LRA

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 Shoe and Leather Workers Union v Modern Soap Factory [2018] KEELRC 1665 (KLR)", Case Analysis (2018). ELRC Cause No. 205 of 2015 (as per the pleadings referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1665/eng@2018-02-22

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