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ELRCAllowedPetition (ELRC Nyeri)· [2019] KEELRC 943 (KLR)

Olivado (Epz) Limited v Isaiah Bundi Kirigwa, Chairperson National Labour Board & another [2019] KEELRC 943 (KLR)

Employment and Labour Relations Court
29 July 2019
NMNzioki wa Makau
1,372 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 paused a labour case for two months so the National Labour Board could first decide a union recognition dispute.

What this practically means

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Executive summary

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The Petitioner, an employer, sued the National Labour Board (the Board) and a trade union seeking a stay of Cause No. 182 of 2017 before the Employment and Labour Relations Court, in which the Union was Claimant and the Petitioner Respondent. The Petitioner contended that it had applied to revoke the recognition agreement on 13 June 2017 because the Union lacked a valid recognition agreement, no longer enjoying a simple majority of unionisable employees, and that the Board had not determined its application. It relied on authorities including the Bomas of Kenya case to argue that the conciliation process had not addressed the recognition dispute, and that the Union's failure to challenge the application before the Board showed acquiescence. The Union, through its Secretary General Boniface Kavuvi, opposed, asserting the recognition agreement of 18 July 2016 was voluntarily entered into when it commanded 50% membership, that the Petition was a delaying tactic to scuttle a nearly concluded suit, and that the Petitioner lacked a referral certificate under Section 69 of the Labour Relations Act. The court found that the recognition dispute had been raised with the Board and remained undetermined. Given the Board's reconstitution, it stayed Cause No. 182 of 2017 for two months to enable the Board to determine the recognition dispute, ordered the Board to file its determination before 29 September 2019, and directed that costs of the Petition abide the outcome of the Board's determination.

Key legal issues

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01

Stay of proceedings pending the National Labour Board's determination of a recognition dispute

Holding

The court stayed Cause No. 182 of 2017 for two months and directed the Board to file its determination by 29 September 2019, finding that the dispute had been raised with the Board and remained undetermined.

Reasoning

The Petitioner sought a stay pending the Board's determination of the recognition dispute. The court noted the dispute was raised with the Board and no determination had been given. Since the National Labour Board had been reconstituted and could legally make determinations, the court granted a time-bound stay of two months and issued an order compelling the Board's determination to be filed by 29 September 2019, with costs to abide the outcome.

p. 2

Legal principles established

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  • Where a recognition dispute is pending before the National Labour Board and undetermined, proceedings premised on the recognition agreement may be stayed pending the Board's determination.

Court orders

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  1. 1.Stay of Cause No. 182 of 2017 for 2 months to enable the National Labour Board to determine the recognition dispute
  2. 2.An order directed to the National Labour Board that its determination be filed before 29th September 2019
  3. 3.Costs of the Petition to abide the outcome of the determination of the National Labour Board

Authorities

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Legislation

  • Labour Relations ActSection 54(5)
  • Labour Relations ActSection 54(6)
  • Labour Relations ActSection 4
  • Labour Relations ActSection 69
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 36
  • Rules on conciliation reportRule 5(1)

Cases cited (4)

  • Kenya Union of Printing Paper Manufacturers & Allied Workers v Packaging Industries Limited & Another
    [2014] eKLR
  • Bakery, Confectionery, Food Manufacturing & Allied Workers Union v Mombasa Maize Millers Limited & 3 Others
    [2016] eKLR
  • Kenya Union of Entertainment & Music Industry Employees v Bomas of Kenya Ltd
    [2018] eKLR
  • BIFU v Taifa Sacco Ltd.
    [2014] eKLR
Jurisdiction invoked
Labour Relations Act, Sections 54(5), 54(6) and 69; Article 41 of the Constitution invoked in submissions

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Olivado (Epz) Limited v Isaiah Bundi Kirigwa, Chairperson National Labour Board & another [2019] KEELRC 943 (KLR)", Case Analysis (2019). Petition (ELRC Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/943/eng@2019-07-29

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