Kenya Electrical Traders & Allied Workers Union v Kenya Electricity Transmission Company Ltd [2021] KEELRC 2146 (KLR)
The bottom line
#A Kenyan court dismissed a union's bid for recognition because it signed up only 29% of employees, far below the simple majority the law requires.
What this practically means
#Executive summary
#Key legal issues
#Legal threshold for recognition under section 54(1) of the Labour Relations Act
Claimant did not recruit a simple majority; only 235 of 800 unionisable staff (29.37%) signed check-off forms, falling far short of the 50%+1 threshold
The court examined the Claimant's own forwarding letters of 8.4.2019 (161 staff) and 17.4.2019 (73 staff), which disclosed only 235 signatories across 13 check-off forms, and no further forms were served. Even without discounting the 167 disputed signatories, 235 out of 800 equates to 29.3565%, below the simple majority required by section 54(1). The court applied Wasilwa J's decision in the Naivas case.
Legal threshold for deduction of union dues under section 48 of the Labour Relations Act
The employer is not obliged to deduct union dues absent evidence of a Cabinet Secretary's order served on or known to the employer; the union wrongly argued no such service was required
The court held that an order directed at a person must be served on that person, distinguishing the Black and Beauty Products precedent where the Gazette Notice number was disclosed. Where the order's existence is disputed, the union must prove service or the employer's awareness or produce the order as an exhibit. Here none was done, so no deduction obligation arose under section 48(3).
Validity of the check-off instructions given the 167 disputed signatories
Taking seriously the written denials of membership and consent by 167 of the 235 signatories, only 68 eligible members remained, which exceeded the five-employee minimum but did not trigger any deduction obligation without the ministerial order
Although the 68 remaining members surpassed the section 48(2) threshold of more than five members, the deduction machinery under section 48(3) could not be activated without a Cabinet Secretary's order. The court noted that the employee's right over salary under section 19(1)(g) of the Employment Act is, as regards union dues, exercisable subject to sections 48(2) and (3).
Whether the constitutional claim of infringement of fair labour relations and fair labour practices was competent
Dismissed for failure to plead the claim with the precision required by Anarita Karimi Njeru v Republic
The court applied the Anarita Karimi Njeru standard: a constitutional claim must identify the provision infringed, the right violated and the manner of violation. The Claimant's pleadings did not do so with any precision, so the constitutional determination sought could not issue.
Legal principles established
#- An employer is bound to recognise a trade union only where the union represents a simple majority of unionisable employees under section 54(1) of the Labour Relations Act.
- Where the existence of a ministerial order under section 48(2) is disputed by the employer, the trade union bears the burden of proving service of, or the employer's awareness of, the order; without such an order the employer has no obligation to deduct union dues and the court has no jurisdiction to compel it.
- A constitutional claim must satisfy the Anarita Karimi Njeru precision threshold, stating with precision the constitutional provision infringed, the right violated and the manner of violation.
Court orders
#- 1.The claimant's suit dismissed with no costs
- 2.The constitutional claim (infringement of fair labour relations and fair labour practices) dismissed
- 3.The claim for deduction and remittance of union dues dismissed; claimant at liberty to collect union dues directly from the 68 eligible members under section 52 of the Labour Relations Act until it serves the Respondent with the Cabinet Secretary's order
- Jurisdiction invoked
- Article 36 and 41(2)(a) of the Constitution read with the Labour Relations Act, 2007 (trade union recognition and check-off provisions); suit filed in the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Electrical Traders & Allied Workers Union v Kenya Electricity Transmission Company Ltd [2021] KEELRC 2146 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2146/eng@2021-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.