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ELRCDismissedCause regarding registration of CA No. 195 of 2019 (application dated 8 November 2019)· [2020] KEELRC 1002 (KLR)

Kingswear Limited v Kenya Union of Commercial, Food & Allied Workers Union [2020] KEELRC 1002 (KLR)

Employment and Labour Relations Court
29 May 2020
RSRadido Stephen
993 words in judgment
View original judgmentRead on Kenya Law Watch case
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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 Court had registered a collective agreement between the Kenya Union of Food, Commercial & Allied Workers Union and Kingswear Ltd on 6 November 2019, following a no-objection certification by the Ministry of Labour issued on 6 August 2019. The employer moved the Court on 8 November 2019 seeking a stay of implementation of clauses 20 and 27 of the agreement, review and setting aside of the registration, and recall of the registration order on grounds of fraud, misrepresentation and want of compliance with section 35(5) and (6) of the Employment Act, 2007. It contended the two clauses, dealing with termination, retirement and service pay, were sneaked in during negotiations. The Union did not file a formal response but made oral submissions. The Court held that although the employer alleged it had objected in writing before registration, it exhibited no such objection, and agreed with the Union that no objections had been raised and that the ground was an afterthought. On fraud, the Court noted there were no particulars; the agreement had been signed in March 2018 with the employer's directors initialling each page and presented for registration over a year later, giving the employer ample opportunity to review it and raise any misrepresentation. On legality, the Court held that Employment Act terms are irreducible minimums and more generous agreed terms cannot be contrary to public policy or illegal; section 35(6)(b) expressly permits the employer and a Union to establish a gratuity fund. The application dated 8 November 2019 was dismissed with costs to the Union. The ruling was delivered electronically on 29 May 2020 owing to delays caused by the Covid-19 pandemic.

Key legal issues

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01

Whether fraud/misrepresentation was proved to justify setting aside registration

Holding

Not proved - no particulars of fraud and no written objection exhibited

Reasoning

The employer asserted it had objected in writing to the offending clauses before registration but exhibited no such objection. No particulars of the alleged fraud or misrepresentation were given, and the employer's directors initialled each page in March 2018, a year before registration, undermining any claim of late discovery.

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02

Whether clauses 20 and 27 conflicted with section 35(5) and (6) of the Employment Act

Holding

They did not; section 35(6)(b) expressly permits the employer and a Union to provide or establish a gratuity fund

Reasoning

The Employment Act sets irreducible minimums and its objective is to define employees' fundamental rights and provide basic conditions of employment. More generous agreed terms are not illegal or contrary to public policy. Section 35(6)(b) expressly leaves it to the employer and a Union to provide or establish a gratuity fund, so the impugned clauses were lawful.

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Legal principles established

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  • A collective agreement may be set aside where consent was procured by fraud, collusion, material non-disclosure, misrepresentation, or where it is contrary to public policy or the law
  • Statutory terms and conditions under the Employment Act are irreducible minimums; parties may agree on more generous terms without offending public policy

Court orders

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  1. 1.The application dated 8 November 2019 is dismissed
  2. 2.Costs of the application awarded to the Union

Authorities

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Legislation

  • Employment Actsection 35(5), section 35(6), section 35(6)(b), preamble

Cases cited (3)

  • Brooke Bond Liebig Ltd vs Mallya
    (1975) EA 266
  • Flora Wasike vs Destimo Wamboka
    (1988) 1 KAR 625
  • Samson Munikah t/a Munikah & Company Advocates vs Wedube Estates Limited
    (2007) eKLR 13
Jurisdiction invoked
Registration and review of collective agreements under the Employment Act, 2007 and the court's inherent jurisdiction over its registration orders

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Kingswear Limited v Kenya Union of Commercial, Food & Allied Workers Union [2020] KEELRC 1002 (KLR)", Case Analysis (2020). Cause regarding registration of CA No. 195 of 2019 (application dated 8 November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1002/eng@2020-05-29

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