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ELRCOtherNot stated in the judgment as provided· [2020] KEELRC 1029 (KLR)

Kenya National Union of Teachers (Knut) v Nancy Njeri Macharia & another [2020] KEELRC 1029 (KLR)

Employment and Labour Relations Court
22 May 2020
MOMAUREEN ONYANGO
4,412 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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An employer cannot end a union's recognition agreement without first getting National Labour Board approval, so KNUT's court case was properly filed.

What this practically means

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Executive summary

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The Kenya National Union of Teachers, recognised by the Teachers Service Commission under a Recognition Agreement dated 15th May 1968, was served on 4th November 2019 with two months' notice of termination of the agreement on the ground that it no longer had a simple majority of unionisable employees. The notice invoked Clause 2 of the agreement and Section 54(1) of the Labour Relations Act, and the employer simultaneously applied to the National Labour Board under Section 54(5). The union filed suit on 7th November 2019 seeking interim and permanent injunctions restraining termination and protection of its membership register. The respondents filed a preliminary objection arguing the suit was premature and incompetent because the statutory conciliation machinery under Part VIII of the Labour Relations Act had not been exhausted before the union moved to court. The claimant relied on Section 74 of the Act, which allows urgent referral of recognition disputes directly to the court. Maureen Onyango, Judge, held that under Section 54(5) it is the employer's duty to apply to the National Labour Board first, and Board approval is a statutory precondition to termination; the employer's notice issued before such approval was itself premature and irregular. Section 74 independently permitted the union to come to court as a matter of urgency. Section 15(4) of the Employment and Labour Relations Court Act gives the court discretion to refer disputes to conciliation, so filing before conciliation does not oust jurisdiction. The exhaustion doctrine was also inapplicable because conciliation timelines would exceed the two months' notice with no power to suspend it, so the statutory machinery could not provide the relief sought. The preliminary objection was dismissed with costs, and the respondents were directed to file replies and defence within 30 days. The suit remains pending.

Key legal issues

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01

Whether the suit was prematurely filed before exhausting statutory conciliation under Part VIII of the Labour Relations Act

Holding

The preliminary objection was dismissed: the union was entitled to come directly to court because the employer's notice was issued before Board approval and Section 74 permits urgent referrals, and the exhaustion doctrine was inapplicable on the facts.

Reasoning

Under Section 54(5) only the employer may apply to the Board to terminate a recognition agreement; Board approval is a precondition to a valid termination notice, so the employer's notice was irregular and the union cannot be faulted for filing suit. Section 74 also permits urgent referral of recognition disputes directly to the court. Further, conciliation timelines (14+14+21+30 days) would exceed the two months' notice, with no power to suspend the notice, so the conciliation machinery could not afford the relief sought.

p. 5
02

Whether filing a dispute in court before conciliation ousts the court's jurisdiction

Holding

No - the court retains jurisdiction; Section 15(4) of the Employment and Labour Relations Court Act gives it discretion to stay proceedings and refer the dispute to conciliation, not to oust jurisdiction.

Reasoning

Section 15(4) contemplates parties coming to court before conciliation and empowers the court to stay proceedings and refer the matter to conciliation or mediation if appropriate. Therefore, filing before conciliation does not defeat the court's jurisdiction, contrary to the respondents' submission.

p. 5

Legal principles established

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  • Where the employer issues a notice of termination of a recognition agreement without first applying to the National Labour Board under Section 54(5), any such notice is premature and the union may come directly to court.
  • Section 74 of the Labour Relations Act permits a trade union to approach the Industrial Court as a matter of urgency where the dispute concerns recognition of a trade union.
  • The exhaustion doctrine does not apply where the alternative statutory machinery cannot be completed before the two months' notice lapses and offers no relief equivalent to the orders sought.

Court orders

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  1. 1.The preliminary objection is dismissed with costs
  2. 2.The respondents are directed to file their reply to the application and defence to the claim within 30 days from the date of ruling

Authorities

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Legislation

  • Labour Relations Act, 2007Section 54(1)-(8)
  • Labour Relations Act, 2007Section 73
  • Labour Relations Act, 2007Section 74
  • Labour Relations Act, 2007Sections 62-69, 63(1), 64, 65, 67 (Part VIII)
  • Employment and Labour Relations Court ActSection 15(4)
  • Constitution of KenyaArticle 159(2)(d), Article 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Firearms ActSection 23

Cases cited (10)

  • Kenya Union of Entertainment and Music Industry Employee v Bomas of Kenya Limited
    (2016) eKLR
  • Speaker of National Assembly v James Njenga Karume
    [1992] eKLR
  • Geoffrey Muhinja and Another v Samuel Muguna Henry & 1756 Others
    (2015) eKLR
  • Mary Wambui Munene v Peter Gichuki Kingara and 2 Others
    (2014) eKLR
  • Micato Safaris v Kenya Game Hunting and Safaris Union Workers Union
    (2017) eKLR
  • Aviation and Allied Workers Union v Air Kenya Express Limited and Another
  • Republic v Secretary of the Firearms Licencing Board and 2 Others Ex Parte: Senator Johnson Muthama
    (2018) eKLR
  • Mohammed Ali Baadi and Others v The Attorney General and 11 Others
    (2018) eKLR
  • Dawda K. Jawara v Gambia
  • R. v Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance (NASA) Kenya
Jurisdiction invoked
Section 74 of the Labour Relations Act, 2007 and Section 15 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Kenya National Union of Teachers (Knut) v Nancy Njeri Macharia & another [2020] KEELRC 1029 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1029/eng@2020-05-22

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