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ELRCPartially AllowedNotice of Motion dated 4th August 2021 (ELRC cause)· [2021] KEELRC 176 (KLR)

Kenya Union of Commercial Food and Allied Workers v Kinangop Dairy Limited [2021] KEELRC 176 (KLR)

Employment and Labour Relations Court
2 December 2021
LNLINNET NDOLO
1,681 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered an employer to stop intimidating union members and to start deducting and remitting union dues, pending full hearing of the dispute.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court at Nairobi delivered by Linnet Ndolo J on 2nd December 2021 in a Notice of Motion dated 4th August 2021 brought by a trade union representing employees in the dairy and milk industry. The union sought orders restraining the employer from victimising, harassing or terminating employees on account of union membership, restraining any action to force withdrawal of union membership, restraining police questioning of unionisable employees at Ndunyu Njeru Police Post, and directing deduction and remittance of union dues. The employer, in a replying affidavit by its General Manager-Human Resources, contended that the union had not exhausted the conciliation process under Section 54 of the Labour Relations Act, had not met the statutory recognition threshold, and that its membership list had been depleted by terminations, resignations and withdrawals. At submissions, the union abandoned the prayer against the police officer and conceded that recognition could not be canvassed at the interlocutory stage. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court found a prima facie case of harassment and victimisation, noting the employer's failure to honour a requested meeting, an abnormally high employee turnover, and absence of evidence of dues remittance. It held that continued victimisation would deplete membership and defeat any claim for recognition, constituting irreparable harm. The court restrained the employer from victimisation or intimidation on account of union membership and directed it to deduct and remit union dues, with costs in the cause.

Key legal issues

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01

Prima facie case for interlocutory relief in an unfair labour practice dispute

Holding

The Claimant established a prima facie case of harassment and victimisation of employees on account of union activities

Reasoning

The court relied on evidence that the Respondent did not honour a requested meeting, noted an abnormally high employee turnover during the short life of the dispute, and observed that the Respondent provided no evidence of deduction and remittance of union dues for duly recruited employees. These cumulative facts showed an apparent infringement of the employees' freedom of association and a probability of success on trial.

p. 3
02

Irreparable harm

Holding

Loss of union members through victimisation and non-remittance of dues would irreparably defeat the recognition claim

Reasoning

The court reasoned that continued harassment and failure to remit dues would deplete membership numbers, 'haemorrhage', thereby destroying any prospective claim for a recognition agreement, a harm not compensable by damages.

p. 3

Legal principles established

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  • Harassment and victimisation of employees on account of union activities, coupled with failure to deduct and remit union dues, constitutes a prima facie case justifying interlocutory relief because it defeats any future claim for recognition.

Court orders

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  1. 1.The Respondent is restrained from taking any action that may reasonably be construed as victimisation and/or intimidation of its employees on account of trade union membership
  2. 2.The Respondent is directed to deduct and remit union dues to the Claimant Union on account of its employees who have been duly recruited into union membership
  3. 3.Costs of the Motion to be in the cause

Authorities

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Legislation

  • Labour Relations ActSection 54
  • Labour Relations ActSection 54(1)

Cases cited (4)

  • Giella v Cassman Brown & Company Limited
    [1973] E.A 358
  • Kenya Commercial Finance Co. Ltd v Afraha Education Society Limited
    [2001] 1 E.A 86
  • Nguruman Limited v Jan Bond Nielsen & 2 others
    [2014] eKLR
  • Mrao Ltd v First American Bank of Kenya Limited & 2 others
    [2003] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Relations Act (interlocutory application in a labour dispute)

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 Kinangop Dairy Limited [2021] KEELRC 176 (KLR)", Case Analysis (2021). Notice of Motion dated 4th August 2021 (ELRC cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/176/eng@2021-12-02

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