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ELRCDismissed· [2021] KEELRC 2146 (KLR)

Kenya Electrical Traders & Allied Workers Union v Kenya Electricity Transmission Company Ltd [2021] KEELRC 2146 (KLR)

Employment and Labour Relations Court
18 February 2021
5,027 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant, a trade union registered under section 19 of the Labour Relations Act, sued the Respondent electricity transmission company on 9.8.2019 seeking recognition under section 54(1), deduction and remittance of union dues under section 48, an injunction against victimisation of its members, and a declaration of infringement of constitutional rights to fair labour relations. It alleged recruitment of 468 of 800 unionisable employees. The Respondent denied the claim, contending it received only 13 check-off forms signed by 235 employees, of whom 167 denied membership in writing after an internal verification memo, leaving only 68 members; it also complained to the DCI over alleged forged signatures and prayed for dismissal with costs. The court, disposing of the suit on pleadings, witness statements and written submissions, framed three issues. It held that the Claimant recruited only 235 of 800 staff (29.37%), far below the simple majority required for recognition, following the Naivas precedent. It further held that a ministerial order under section 48(2) must be served on, or at least brought to the attention of, the employer; no such order was produced or proved, so the Respondent was under no obligation to deduct union dues and the court had no jurisdiction to compel it. The 167 denials of membership left only 68 eligible members, from whom the union may collect dues directly under section 52 until service of any Cabinet Secretary's order. The constitutional declaration failed the Anarita Karimi Njeru precision threshold, and the injunction was refused for lack of evidence, the allegations being speculative. The suit was dismissed with no costs.

Key legal issues

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01

Legal threshold for recognition under section 54(1) of the Labour Relations Act

Holding

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

Reasoning

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.

p. 4
02

Legal threshold for deduction of union dues under section 48 of the Labour Relations Act

Holding

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

Reasoning

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).

p. 5
03

Validity of the check-off instructions given the 167 disputed signatories

Holding

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

Reasoning

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).

p. 5
04

Whether the constitutional claim of infringement of fair labour relations and fair labour practices was competent

Holding

Dismissed for failure to plead the claim with the precision required by Anarita Karimi Njeru v Republic

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The claimant's suit dismissed with no costs
  2. 2.The constitutional claim (infringement of fair labour relations and fair labour practices) dismissed
  3. 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

Authorities

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Legislation

  • Labour Relations Actsection 19
  • Labour Relations Actsection 54(1)
  • Labour Relations Actsection 48(2) & (3)
  • Labour Relations Actsection 50
  • Labour Relations Actsection 52
  • Employment Actsection 19(1)(f) & (g)
  • Constitution of Kenya, 2010Articles 36 and 41(2)(a)
  • ELRC Procedure RulesRule 28(3)

Cases cited (12)

  • Kenya Union of Hair and Beauty Salon Workers v Styled Industries Ltd and Another
    [2020]eKLR
  • Kenya Long Distance Truck Drivers and Allied Workers Union v Masters Fabricators Ltd
    [2020]eKLR
  • Kenya National Union of Nurses v County Public Service Board Homa Bay
    [2018]eKLR
  • Banking Insurance Finance Union (K) v Kenya Revenue Authority
    [2018]eKLR
  • Civicon Limited v Amalgamated Union of Kenya Metal Workers
    [2016]eKLR
  • Kenya Union of Hair and Beauty Workers v Black and Beauty Products Ltd
    [2020]eKLR
  • Bakery, Confectionary, Food Manufacturing and Allied Workers Union (K) v Brava Food Industries
    [2020]eKLR
  • Vijay Morjaria v Nansingh Madhusingh Darbar & Another
    [2000]eKLR
  • Wilberforce Asiepi Ongoru & 2 Others v Margaret Ondeso Opio & 3 Others
    [2000]eKLR
  • Kenya Chemical & Allied Workers Union v Base Titanium Ltd
    [2016]eKLR
  • Kenya Union of Commercial Food and Allied Workers v Naivas Ltd
    [2015]eKLR
  • Anarita Karimi Njeru v Republic
    [1979]eKLR
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

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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 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.