Kenya Union of Commercial Food & Allied Workers v Hypermart Limited [2021] KEELRC 1159 (KLR)
The bottom line
#Kenya's Employment Court dismissed a union's bid for recognition because it proved only 20 of 179 employees were members, far short of the simple majority the law requires.
What this practically means
#Executive summary
#Key legal issues
#Whether the Union met the simple majority recognition threshold under Section 54(1) of the Labour Relations Act
The Union did not meet the threshold; the Conciliator found only 20 members out of 179 employees, far below the simple majority required for recognition
The court framed the dispute as one of recognition under Section 54(1), which requires a simple majority of unionisable employees. The Conciliator's determination that the Union had recruited only 20 of 179 employees was below the requisite minimum. The Union's claim of 114 out of 158 members (72.2%) was not proved, as the employer rebutted the check-off forms with employee statements and the Union failed to discharge its evidential burden.
Whether the Union discharged its burden of proving the check-off forms and allegations of victimisation
The Union failed to prove its allegations on a balance of probabilities; pleadings and assertions are not evidence
Relying on authority cited by the Respondent, the court accepted that he who alleges must prove. The employer questioned the authenticity of the check-off forms and produced employee statements disclaiming membership; the Union did not rebut these discrepancies or prove the alleged bias of the Conciliator or the victimisation of 14 employees, who the Respondent said were declared redundant in separate proceedings.
Legal principles established
#- A trade union must recruit a simple majority of an employer's unionisable employees before the employer is obliged to recognise it under Section 54(1) of the Labour Relations Act
- A conciliator's finding on union membership that falls below the simple majority threshold defeats a claim for recognition and dues deduction
Court orders
#- 1.The Claimant's Notice of Motion dated 8th December 2020 is dismissed with costs to the Respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over trade disputes and recognition of trade unions under the Labour Relations Act, 2007 (Sections 48 and 54)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food & Allied Workers v Hypermart Limited [2021] KEELRC 1159 (KLR)", Case Analysis (2021). ELRC Cause (Nairobi) – Notice of Motion dated 8th December 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1159/eng@2021-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.