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ELRCDismissedClaim filed with Statement of Claim, determined on pleadings, affidavits, documents and written submissions (E&LRC)· [2021] KEELRC 1028 (KLR)

Kenya Export, Floriculture, Horticulture And Allied Workers v Kenya Plantation & Agricultural Workers Union & 2 others; Cabinet Secretary for Labour And Social Protection & another (Interested Parties) [2021] KEELRC 1028 (KLR)

Employment and Labour Relations Court
10 September 2021
5,037 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Employment and Labour Relations Court ruled that merely registering a trade union does not grant it recognition — incumbent unions with existing agreements stay put.

What this practically means

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Executive summary

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The Claimant Union, registered to represent the floriculture and horticulture industry following successive judgments of the E&LRC, Court of Appeal and Supreme Court, sought declarations that it is the sole trade union for the export floriculture and vegetables industries, an order compelling the 1st Respondent to vacate the industry, an order barring the Cabinet Secretary for Labour from registering further CBAs between the Respondents, and enforcement by the Registrar of Trade Unions. The matter was disposed of on pleadings, affidavits and written submissions by consent under Rule 21 of the E&LRC Procedure Rules, 2016. The Court framed three issues: encroachment, ejection of the 1st Respondent, and invalidation of existing labour contracts. It found no encroachment: the 1st Respondent was honouring a longstanding Recognition Agreement (1999) and a series of CBAs covering 73 flower farms and over 60,000 employees. The Court held the 'one union, one industry' precedent in KHAWU v. KUDHEIHA had been overtaken by post-2010 decisions protecting freedom of association under Articles 36 and 41 of the Constitution. Registration alone does not confer recognition; the Claimant must recruit a simple majority of the 2nd Respondent's members and satisfy Section 54 of the Labour Relations Act. The Court also agreed the dispute was premature, conciliation not having been undertaken. The claim was rejected in its entirety, with costs to the Claimant.

Key legal issues

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01

Whether the 1st Respondent encroached on the Claimant's area of representation

Holding

No; the 1st Respondent was honouring existing contractual obligations under a Recognition Agreement and CBAs, not encroaching

Reasoning

The Claimant obtained registration only; registration proceeded on the understanding that the 1st Respondent was not sufficiently representative, not that employees were unrepresented. Both constitutions use the term 'allied', weakening any specialism claim. The 1st Respondent cannot be said to encroach by honouring a longstanding Recognition Agreement and succession of CBAs covering 73 flower farms and over 60,000 employees.

02

Whether the 1st Respondent should be ordered out of the floriculture and horticulture industry

Holding

No; the 'one union, one industry' line of cases has been overtaken by post-2010 decisions protecting freedom of association and existing labour contracts

Reasoning

The Court, which authored KHAWU v. KUDHEIHA, observed that KUDHEIHA remains active in the hotel industry and that the award ordering it out was rendered ineffectual by later decisions. There is a strong bent favouring protection of freedom of association where longstanding labour contracts are sought to be undone by newcomer unions. The Claimant must first recruit a simple majority of the 2nd Respondent's members.

p. 6
03

Whether existing labour contracts should be invalidated and future ones prohibited

Holding

No; the Recognition Agreement and CBAs were not undone by the Claimant's registration and remain legally protected

Reasoning

All the judicial pronouncements did was confirm the Claimant merited registration; recognition and organizational rights are a different process under Section 54. Invalidation would leave thousands of employees unrepresented and infringe Articles 36 and 41 of the Constitution. The Claimant must satisfy Section 54 by recruiting at least 50% + 1 of unionisable employees to be considered for recognition.

p. 6
04

Prematurity for want of conciliation

Holding

The dispute should have gone through conciliation under Section 54(6)(7) of the Labour Relations Act and was presented prematurely

Reasoning

The 2nd Interested Party submitted that recognition disputes must first go to conciliation, and only be referred to the E&LRC if unresolved. The Court agreed, though as the claim was being dismissed it did not discharge the 2nd Interested Party.

p. 7

Legal principles established

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  • Registration of a trade union does not confer recognition or organizational rights; the union must recruit a simple majority of unionisable employees to be considered for recognition.
  • Existing Recognition Agreements are protected by freedom of association and a presumption of validity rebuttable only by cogent evidence.
  • Recognition Agreements rest on freedom of association and are not irreversible; the right to associate is joined to the right to dissociate.

Court orders

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  1. 1.The Claim is rejected in its totality
  2. 2.Costs to be paid by the Claimant

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 36
  • Labour Relations ActSection 4
  • Labour Relations ActSection 14(1)
  • Labour Relations ActSections 54, 54(2)(3), 54(5), 54(6)(7)
  • Labour Relations ActSections 57 and 59
  • Industrial Relations Charternot specified
  • E&LRC [Procedure] Rules, 2016Rule 21

Cases cited (7)

  • Banking, Insurance and Finance Union [BIFU] v. Kenya Bankers Association & Kenya Union of Commercial, Food and Allied Workers Union [KUCFAW]
    Cause No. 75 of 1999
  • Kenya Hotels and Allied Workers Union [KHAWU] v. Grand Regency Hotel Limited & Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers [KUDHEIHA] & Kenya Hotel Keepers and Caterers Association [KHKCA]
    Cause No. 39 of 2007
  • Japheth Anyira Agura & Others v. Registrar of Trade Unions
    Appeal No. 1 of 2011; [2014] e-KLR
  • KHAWU v. Hilton Hotel
    Nairobi E&LRC Cause No. 1194 of 2014
  • KHAWU v Pangoni Beach Limited
    [2015] e-KLR
  • Scientific Research International Technical & Allied Workers Union v. Kenya Agricultural Research Institute & Another
    [2013] e-KLR
  • Mombasa Maize Millers Limited v. Bakery, Confectionery, Food Manufacturing and Allied Workers Union & Another
    [2018] e-KLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court under the Employment and Labour Relations Court Act and the Labour Relations Act; dispute on trade union representation and recognition

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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 Export, Floriculture, Horticulture And Allied Workers v Kenya Plantation & Agricultural Workers Union & 2 others; Cabinet Secretary for Labour And Social Protection & another (Interested Parties) [2021] KEELRC 1028 (KLR)", Case Analysis (2021). Claim filed with Statement of Claim, determined on pleadings, affidavits, documents and written submissions (E&LRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1028/eng@2021-09-10

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