Kenya Union of Commercial, Food & allied Workers v Gravity Trading Company Limited; Central Organisation of Trade Unions (Kenya) (Interested Party) [2021] KEELRC 2387 (KLR)
The bottom line
#Kenyan employers must recognise a union once it signs up a simple majority of employees, even if the numbers don't perfectly match.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant union had recruited a simple majority of the respondent's unionisable employees so as to qualify for recognition under section 54 of the LRA
- 2.Whether the respondent should be directed to recognise the claimant and conclude a recognition agreement
- 3.Whether the respondent was obliged to deduct and remit trade union dues
Key legal issues
#Threshold for recognition of a trade union under section 54 LRA
The claimant satisfied the simple majority threshold, having recruited 12 employees against the respondent's admitted 10, and its sector and mandate were not contested; recognition was therefore ordered
Section 54(1)-(3) requires a union to prove recruitment of a simple majority of unionisable employees before an employer must recognise it and conclude a written recognition agreement. Section 54(8) requires the court to consider the sector of the employer. The claimant's check off forms showed 12 members recruited, exceeding the employer's admitted workforce of 10. The right to unionise is grounded in Article 41 of the Constitution and reinforced by section 17(11) of the Employment Act.
Deduction and remittance of trade union dues under sections 48 and 49 LRA and section 19 Employment Act
The claimant complied with section 48(2) and (3) LRA, the check off forms bearing the Minister's Order pursuant to Kenya Gazette Notice No.11153 of 8th August, 2013, justifying an order for deductions and remittances
The respondent argued that absent a Minister's Order under section 48(2) LRA, any deduction would be unlawful under section 19 of the Employment Act. The court found the reverse of the check off forms contained the details of the Minister's Order published in Kenya Gazette Notice No.11153 of 8th August, 2013, so the statutory prerequisites were met, and deductions were directed pursuant to the consent adopted on 13th October, 2020.
Legal principles established
#- An employer must recognise a trade union for collective bargaining where that union represents the simple majority of unionisable employees, and the court will take into account the sector in which the employer operates
- A minor variance between the number of recruited employees shown on check off forms and the employer's stated headcount does not defeat recognition where the union's sector and mandate are not contested
Court orders
#- 1.The respondent is directed to recognise the claimant union within 30 days
- 2.The respondent is directed to deduct and remit union dues of all employees currently in its employment who have signed check off forms, pursuant to terms agreed upon vide the consent adopted by the court on 13th October, 2020
- 3.Each party shall bear own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Labour Relations Act, section 54(7) - reference of an unresolved recognition dispute to the Industrial Court (ELRC)
- Consolidated with
- Cause No. 573 of 2019
Relief refused
#Prospective monthly deductions/remittances of Ksh.4,400 per member as claimed for the period before the consent
By consent the parties agreed that deductions would commence from August 2020 in accordance with the adopted consent, which governed the deductions order
Costs
Each party shall bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
An employer, including an employer in the public sector, shall recognise a trade union for purposes of collective bargaining if that trade union represents the simple majority of unionisable employees.
The numbers of recruited employees being 12 and the letters of appointment issued by the respondent being 10, the variance should not affect the recognition of the claimant by the respondent.
The respondent is directed to recognise the claimant union with 30 days;
The respondent is directed to deduct and remit union dues of all employees currently in its employment who have signed check off forms and pursuant to terms agreed upon vide consent adopted by the court on 13th October, 2020;
Each party shall bear own costs.
Issues in the judgment
#Judgment refers to the conciliator events occurring on '16th May, 2028', an apparent typographical error for 2018
The header of the judgment misspells the court as 'EMPLOYMNT AND LABOUR RELATIONS COURT'
The director's name is rendered inconsistently as 'Pradip N Mashru' and 'Mr Mshru' within the same judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ashton Mombasa Apparel (EPZ) Limited v Tailors and Textile Workers Union (Cause E014 of 2024) [2025] KEELRC 444 (KLR)[2025] KEELRC 444 (KLR)20 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food & allied Workers v Gravity Trading Company Limited; Central Organisation of Trade Unions (Kenya) (Interested Party) [2021] KEELRC 2387 (KLR)", Case Analysis (2021). Cause No. 1134 of 2018 (Consolidated with Cause No. 573 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2387/eng@2021-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.