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ELRCDismissedCause No. 301 of 2017 (Notice of Motion dated 5.6.2020)· [2021] KEELRC 1814 (KLR)

Kenya Building Construction Timber & Furniture Industries Employees Union (K.B.C.T & F.I.Eu) v Kenya Union of Road Construction & Civil Engineering Workers Union [2021] KEELRC 1814 (KLR)

Employment and Labour Relations Court
11 March 2021
OMONESMUS N MAKAU
3,035 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 refused to stop a new union from recruiting workers, confirming employees can freely choose which union to join.

What this practically means

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Executive summary

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The Claimant/Applicant union moved the Employment and Labour Relations Court by Notice of Motion dated 5 June 2020 seeking orders to discontinue conciliation of Ministry of Labour dispute ML/LD/IR/66/3/2020 reported by the Respondent, and an interlocutory injunction barring the Respondent from recruiting or interfering with unionisable workers recruited by the Claimant where employers, including China Road & Bridge Corporation (K), had recognised the Claimant. The Claimant, recognised for some 30 years, contended that the newly registered Respondent had no locus standi and lacked compliance with section 48 of the Labour Relations Act (Form S). The Respondent countered that over 600 employees had voluntarily joined it, that Article 41(2)(c) of the Constitution guarantees every employee the right to join a union of choice, and that its members' rights would be infringed by the orders sought. Applying the Giella v Cassman Brown test and relying on Nguruman, Makau J held the Applicant failed to establish a prima facie case: the Respondent is a duly registered union, no stay of the registration judgment (Ongaya J, ELRC Appeal No. 18 of 2019) exists, and barring recruitment would infringe employees' constitutional and statutory rights to withdraw from one union and join another. The Court declined to interfere with pending conciliation proceedings and, absent a prima facie case, did not reach irreparable harm or balance of convenience. The application was dismissed with costs on 11 March 2021, the judgment being delivered online pursuant to Covid-19 directives.

Key legal issues

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01

Whether the Applicant established a prima facie case for interlocutory injunction

Holding

No - the Respondent is a duly registered union and no stay of its registration exists; the Applicant's legal rights were not shown to be infringed

Reasoning

The court found the Respondent validly registered to represent unionisable employees in the road construction sector; although the registration is under appeal, there is no stay. Barring recruitment would infringe employees' rights under Article 41(2)(c) and section 4(1)(b) and (c) of the Labour Relations Act to withdraw from one union and join another.

p. 4
02

Whether the Court should halt conciliation proceedings before the Ministry of Labour

Holding

No - the issue of membership and union dues is pending before the conciliator with both parties involved

Reasoning

Membership and dues collection were to be determined by the conciliator; the court should act carefully not to interfere with conciliation proceedings.

p. 4
03

Whether irreparable harm and balance of convenience required consideration

Holding

No - without a prima facie case these limbs fall away

Reasoning

Relying on Nguruman Limited v Jan Bonde Nielsen, the court held that where a prima facie case is not established, irreparable injury and balance of convenience need no consideration.

p. 4

Legal principles established

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  • Conditions for interlocutory injunctions: prima facie case, irreparable injury, balance of convenience
  • If no prima facie case, the other Giella limbs need not be considered
  • The court protects employees' constitutional rights to join a union of choice, not the interests of trade unions

Court orders

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  1. 1.The application dismissed with costs to the Respondent

Authorities

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Legislation

  • Constitution of KenyaArticles 24(1), 24(2)(b), 25, 36, 41, 41(2)(c)
  • Labour Relations Actsections 4, 4(1)(b), (c), 48
  • Regulation of Wages (General) (Amendment) Order2018
  • ELRC Procedure RulesRule 28(3)
  • ILO Convention 87Article 2

Cases cited (10)

  • Giella –vs- Cassman Brown & Co. Ltd.
    [1973] E.A. 360
  • Mrao Limited v First American Bank of Kenya limited & 2 others
    [2003] eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Kenya National Union of Nurses v The County Public Service Board
    Cause No. 301 of 2017
  • Charles Salano & 9 Others (Proposers & Promoters of Kenya Supermarkets Workers Union (KESMWU) v Registrar of Trade Unions & another
    [2017]
  • Bakery, Confectionery, Food Manufacturing and Allied Workers Union (K) v Mombasa Maize Millers Limited & 3 Others
    [2016] eKLR
  • Kenya Union of Commercial Food & Allied Workers v Ukwala Supermarket Ltd
    [2013] eKLR
  • Kenya Concrete Structural Ceramic Tiles Wood Ply and Interiors Design Employees Union (K.C.S.C.W.I) v Kenya Building, Construction, Timber, Furniture and Allied Industries Employers Union (K.B.C.T & F.I.E.U)
    [2016] eKLR
  • Rift Valley Railways Workers Union v Rift Valley Railways (Kenya) Limited & another
    [2014] eKLR
  • Kenya Petroleum Oil Workers Union v Petro Oil (K) Limited
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution (labour dispute cause)

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 Building Construction Timber & Furniture Industries Employees Union (K.B.C.T & F.I.Eu) v Kenya Union of Road Construction & Civil Engineering Workers Union [2021] KEELRC 1814 (KLR)", Case Analysis (2021). Cause No. 301 of 2017 (Notice of Motion dated 5.6.2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1814/eng@2021-03-11

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