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ELRCAllowedNot stated in the judgment (Memorandum of Claim dated 18/11/2020)· [2021] KEELRC 1725 (KLR)

Kudheiha Workers’ Union v Board of Management Nairobi School [2021] KEELRC 1725 (KLR)

Employment and Labour Relations Court
20 May 2021
MNMathews N. Nduma
1,184 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 claimant union sued the respondent school seeking an order compelling it to deduct and remit union dues under Sections 48(2)(b)(1) and 48(3) of the Labour Institutions Act, to sign a Recognition Agreement, and to stop intimidating union members. The union asserted it had recruited 55 of the school's 84 support staff, surpassing the simple-majority threshold in Section 54(1) of the Labour Relations Act, 2007, and had served a check-off system duly authorized by the Cabinet Secretary for Labour together with a Draft Recognition Agreement. The respondent, though served on 25 November 2020, entered neither appearance nor defence; the matter proceeded to formal proof, with the claimant filing affidavit evidence and submissions. Nduma, J. found the union had met the statutory recognition threshold, that it had proved service of the executed check-off forms on a balance of probabilities, and that the respondent was in default of its obligation to commence dues deductions and sign the agreement. The court followed the Industrial Court decision in Kenya Plantation and Agricultural Workers Union v Expressions Flora Limited. The claim succeeded in full: the respondent was ordered to immediately commence monthly deduction and remittance of dues for the 55 members, to sign the Recognition Agreement and commence collective bargaining, and to desist from harassing or intimidating union members. Costs were awarded to the claimant, following the event. The judgment was delivered online pursuant to COVID-19 directions, with the parties' consent and waiver of Order 21 rule 1 of the Civil Procedure Rules.

Key legal issues

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01

Statutory recognition threshold under Section 54(1) of the Labour Relations Act

Holding

The union recruited 55 of 84 support staff, a simple majority, satisfying the recognition threshold.

Reasoning

The court considered the pleadings, supporting affidavits and written submissions and found the union had recruited 55 of the 84 support staff at the school. This met the simple majority threshold set by Section 54(1) of the Labour Relations Act, obliging the employer to recognize the union as the sole bargaining agent for unionisable support staff. The claim was undefended and proved on a balance of probabilities.

p. 2
02

Employer's default in deducting and remitting union dues and signing the Recognition Agreement

Holding

The respondent was in default of its statutory obligations to deduct dues and sign the Recognition Agreement.

Reasoning

Having been served with a check-off system duly authorized by the Cabinet Secretary for Labour and a Draft Recognition Agreement, the respondent failed to enter appearance or defend the suit. The court held it was in default of its obligation to commence deductions in respect of the 55 employees and to sign the agreement, and directed immediate compliance.

p. 2
03

Protection of union members from intimidation

Holding

The respondent was restrained from harassing or intimidating union members to force withdrawal from the union.

Reasoning

The claimant alleged threats against employees who joined the union, contrary to Article 41 of the Constitution. The court, having accepted the uncontroverted evidence, directed the respondent to desist from any harassment or intimidation aimed at forcing employees to withdraw from union membership.

p. 2

Legal principles established

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  • Recruitment of a simple majority of an employer's unionisable employees satisfies the statutory threshold for recognition under Section 54(1) of the Labour Relations Act
  • Upon service of duly authorized check-off forms, an employer is under a statutory obligation to commence deduction and remittance of union dues

Court orders

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  1. 1.The respondent is directed to immediately commence deduction of union dues in respect of the 55 employees who are members of the claimant union and remit the same to the designated union account on a monthly basis in terms of Section 48 of the Labour Relations Act, 2007
  2. 2.The respondent is directed to immediately sign the Recognition Agreement between it and the claimant union and commence collective bargaining in terms of the Agreement with the Claimant union
  3. 3.The respondent is directed to desist from any form of harassment and or intimidation of its employees who are members of the claimant union aimed at forcing the employees to withdraw from the union
  4. 4.Costs to follow the event

Authorities

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Legislation

  • Labour Institutions ActSections 48(2)(b)(1) and 48(3)
  • Labour Relations Act, 2007Sections 54(1) and 48
  • Constitution of Kenya, 2010Articles 41, 159(2)(d) and 48
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18

Cases cited (1)

  • Kenya Plantation and Agricultural Workers Union and Expressions Flora Limited
    [2013] eKLR
Jurisdiction invoked
Articles 41 and 162(2) of the Constitution and the Labour Relations Act, 2007 (recognition and check-off dispute under Sections 48 and 54)

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, "Kudheiha Workers’ Union v Board of Management Nairobi School [2021] KEELRC 1725 (KLR)", Case Analysis (2021). Not stated in the judgment (Memorandum of Claim dated 18/11/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1725/eng@2021-05-20

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