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ELRCStruck OutCause No. 316 of 2019· [2019] KEELRC 880 (KLR)

Kenya Union Of Commercial, Food and Allied Workers v Kenya Credit Traders Limited [2019] KEELRC 880 (KLR)

Employment and Labour Relations Court
20 September 2019
OMONESMUS N. MAKAU
1,431 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The claimant union sued on 25 April 2019 seeking recognition as the sole union for the respondent's employees, deduction and remittance of union dues, engagement in collective bargaining, and costs. Simultaneously it sought urgent interim orders restraining victimisation of union members. The respondent filed a preliminary objection contending that the dispute concerned non-recognition under section 54(1) of the Labour Relations Act, 2007, and that since the claimant had reported the same dispute to the Labour Cabinet Secretary for conciliation under sections 62 and 54(6), the claimant was required to exhaust Part VIII conciliation before invoking section 74. The court found it undisputed that the claimant had referred the dispute to the Labour Cabinet Secretary on 10 April 2019, before filing suit on 25 April 2019. Reading sections 73 and 74 together, the court held that although a recognition dispute may ordinarily be referred to court urgently without conciliation, once a party has elected conciliation under section 62 the process must be exhausted, per section 73, unless the dispute falls within the statutory exceptions (unprotected strike/lockout or essential services), which did not apply. Following Radido J.'s decision in the Raffia Bags case, the court found the suit premature and struck it out with costs, noting the claimant could return to court if employees' rights were threatened during conciliation. Judgment delivered by Onesmus N. Makau J on 20 September 2019 at Nairobi.

Key legal issues

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01

Whether a trade union that has referred a recognition dispute for conciliation under section 62 of the LRA may file suit under section 74 before conciliation is exhausted

Holding

The suit was premature; although section 74 permits urgent referral of recognition disputes without prior conciliation, once conciliation is initiated under section 62 the process must be exhausted before the court is moved, per section 73

Reasoning

The court read sections 73 and 74 of the LRA together. Section 74 allows a union to refer a recognition dispute to court as a matter of urgency without conciliation. However, once the union itself elects conciliation under section 62, section 73 requires exhaustion of that process before court referral, absent the statutory exceptions of unprotected strike/lockout or essential services, none of which applied. Reliance was placed on the Raffia Bags authority.

p. 3

Legal principles established

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  • Once a recognition dispute has been referred for conciliation under section 62 of the LRA, a party must exhaust that process before moving the court under section 73

Court orders

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  1. 1.The suit is struck out with costs for being premature, the conciliation process before the Labour Cabinet Secretary not having been exhausted
  2. 2.Costs of the suit to the respondent

Authorities

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Legislation

  • Labour Relations Act, 2007section 54(1)
  • Labour Relations Act, 2007section 54(6)
  • Labour Relations Act, 2007Part VIII
  • Labour Relations Act, 2007section 62
  • Labour Relations Act, 2007section 62(4)
  • Labour Relations Act, 2007section 65(1)
  • Labour Relations Act, 2007section 65(3)
  • Labour Relations Act, 2007section 69
  • Labour Relations Act, 2007section 73(1)
  • Labour Relations Act, 2007section 74

Cases cited (2)

  • Kenya Union of Printing, Publishing Paper Manufacturers and Allied Workers Union Vs Colour Creations Ltd
  • Kenya Union of Printing, Publishing, Paper and Manufacturers, Pulp and Packaging Industries Vs Raffia Bags (EA) Ltd
    [2014] eKLR
Jurisdiction invoked
Labour Relations Act, 2007, sections 73 and 74; Industrial Court Act

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 Commercial, Food and Allied Workers v Kenya Credit Traders Limited [2019] KEELRC 880 (KLR)", Case Analysis (2019). Cause No. 316 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/880/eng@2019-09-20

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