Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedPetition (Employment and Labour Relations Court, Nairobi) — number not stated in judgment· [2021] KEELRC 1902 (KLR)

Kenya Union of Commercial, Food& Allied Workers v Attorney General & another; Central Organisation of Trade Unions (Interested Party) [2021] KEELRC 1902 (KLR)

Employment and Labour Relations Court
7 April 2021
1,746 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment and Labour Relations Court upheld the law requiring a simple majority before an employer must recognise a trade union.

What this practically means

#

Executive summary

#
The Kenya Union of Commercial, Food & Allied Workers petitioned the Employment and Labour Relations Court, contending that section 54(1) of the Labour Relations Act, 2007 unconstitutionally limited the freedom of association (Article 36) and the right to fair labour practices (Article 41) in two respects: it failed to guarantee trade unions a right of access to employers' premises for recruitment, and its simple majority recognition threshold failed the Article 24 proportionality test. The Union relied on comparative thresholds from the United Kingdom (10% and 40%) and India (15%) and asserted that Naivas Supermarket had denied it access and victimised employees who joined it. The Respondents and the Interested Party (COTU) filed no submissions; the 1st Respondent filed only Grounds of Opposition. The Court held that the access limb of the challenge was misplaced because section 54(1) does not regulate access; section 56 of the Act confers a statutory right of access enforceable case by case, and the Union never challenged section 56. On the threshold, the Court held the simple majority requirement reasonable and proportionate: it facilitates orderly collective bargaining, curbs proliferation of unions in the workplace and enhances industrial peace, while recognising multiple unions would be a recipe for chaos. The Petition was dismissed. The Court also dismissed a recusal Motion filed by the 2nd Respondent's advocates as frivolous and an abuse of process, and condemned the Respondents, who had failed to comply with Court orders, to pay the Union's costs.

Key legal issues

#
01

Whether section 54(1) of the Labour Relations Act unconstitutionally restricts access to an employer's premises for recruitment

Holding

The challenge was misplaced because section 54(1) does not regulate access; section 56 of the Act confers a statutory right of access enforceable case by case.

Reasoning

The Court read section 54(1) as dealing solely with recognition upon a simple majority, and identified section 56 as the provision governing access to employers' premises for promoting union activities. Since the Union never expressly challenged section 56 or its adequacy, the access-based limb of the constitutional attack failed on that footing.

p. 4
02

Whether the simple majority recognition threshold passes the Article 24 proportionality test

Holding

The threshold is reasonable, proportionate and a justifiable limitation; it facilitates orderly collective bargaining and industrial peace.

Reasoning

The Court held that the statutory simple majority requirement serves a purpose: it structures collective bargaining, curbs proliferation of multiple unions in one workplace and enhances industrial peace. Recognising minority or multiple unions would, in the Court's view, be a recipe for chaos, so the limitation was justified in an open democratic society under Article 24.

p. 4
03

The recusal Motion dated 20 January 2020 filed by the 2nd Respondent's advocates

Holding

The Motion was dismissed as without merit, frivolous and an abuse of court process aimed at delaying the Petition.

Reasoning

The recusal grounds were that the Court had declined an application to cease acting, had previously ruled against the 2nd Respondent in Nakuru Cause No. 401 of 2012, and that a Judge on transfer should not retain a file. The Court found these grounds did not disclose a basis for recusal and characterised the application as a delay tactic.

p. 3

Legal principles established

#
  • Section 54(1) of the Labour Relations Act does not regulate access to an employer's premises; that right is conferred by section 56 of the Act and can be enforced on a case by case basis
  • The simple majority threshold for trade union recognition is a reasonable and proportionate limitation that promotes industrial peace and orderly collective bargaining

Court orders

#
  1. 1.The Motion for recusal filed on 20 January 2020 by Thuita Kiiru & Co. Advocates is dismissed as without merit, frivolous and an abuse of the court process
  2. 2.The Petition is dismissed for lack of merit
  3. 3.The Respondents are condemned to pay the costs of the Petition

Authorities

#

Legislation

  • Labour Relations Actsection 54(1)
  • Labour Relations Actsection 56
  • Constitution of Kenya, 2010Article 36
  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 24
  • Employment Relations Act, 1999 (United Kingdom)thresholds of 10% and 40% (as cited by the Union)
Jurisdiction invoked
Articles 36 and 41 of the Constitution of Kenya, 2010 (constitutional petition challenging section 54(1) of the Labour Relations Act, 2007)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Union of Commercial, Food& Allied Workers v Attorney General & another; Central Organisation of Trade Unions (Interested Party) [2021] KEELRC 1902 (KLR)", Case Analysis (2021). Petition (Employment and Labour Relations Court, Nairobi) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1902/eng@2021-04-07

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