Kenya Union of Commercial, Food& Allied Workers v Attorney General & another; Central Organisation of Trade Unions (Interested Party) [2021] KEELRC 1902 (KLR)
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
#Key legal issues
#Whether section 54(1) of the Labour Relations Act unconstitutionally restricts access to an employer's premises for recruitment
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.
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.
Whether the simple majority recognition threshold passes the Article 24 proportionality test
The threshold is reasonable, proportionate and a justifiable limitation; it facilitates orderly collective bargaining and industrial peace.
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.
The recusal Motion dated 20 January 2020 filed by the 2nd Respondent's advocates
The Motion was dismissed as without merit, frivolous and an abuse of court process aimed at delaying the Petition.
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.
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.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.The Petition is dismissed for lack of merit
- 3.The Respondents are condemned to pay the costs of the Petition
- 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.