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ELRCDismissedNot stated in the judgment· [2022] KEELRC 785 (KLR)

Kenya Electrical Trades and Allied Workers Union v Kenya Power and Lighting Company Limited & another [2022] KEELRC 785 (KLR)

Employment and Labour Relations Court
15 February 2022
MOMAUREEN ONYANGO
5,138 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court declined a union's bid to block a Kenya Power–NYS agreement, but confirmed that registered CBAs remain in force even after their stated expiry date.

What this practically means

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Executive summary

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The Claimant trade union, recognised by Kenya Power and Lighting Company Limited (KPLC) since 1985, moved the Court by application dated 15th July 2021 seeking interlocutory injunctions to stop the launch and implementation of a Memorandum of Understanding dated 5th February 2020 between KPLC and the National Youth Service (NYS), which it feared would outsource meter reading services and lead to redundancy of some 300 of its members, and orders that the MOU not affect the subsisting CBA (2017-2021). KPLC and NYS opposed the application: KPLC contended the dispute was commercial, outside the Court's jurisdiction, that the Applicant lacked locus standi, and that what was being implemented was a World Bank-financed GIS data clean-up agreement dated 9th June 2021, not the MOU, with assurances of no job losses; NYS raised grounds of opposition including that the MOU had lapsed and that it had no relationship with the union. The Court framed four issues: jurisdiction, locus standi, validity of the CBA, and entitlement to the orders sought. It held it had exclusive jurisdiction over the labour disputes as framed; the union had locus standi; and, applying Section 59(3) of the Labour Relations Act and clause 38.0 of the CBA, the CBA remained in force beyond its stated duration. However, applying Giella v Cassman Brown, the Claimant failed to establish a prima facie case with probability of success, having acted on the mistaken belief that the event launched on 16th July 2021 concerned the MOU, and no irreparable harm was demonstrated. All the orders sought were declined, the parties were encouraged to consult under the recognition agreement and CBA, the suit was set for mention on 16th May 2022, and there were no orders for costs.

Key legal issues

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01

Jurisdiction of the ELRC over a dispute said to arise from a commercial MOU

Holding

The Court has jurisdiction because the issues in dispute are unfair labour practices, outsourcing of meter reading services, and breach of the recognition agreement and CBA - all matters within its exclusive domain; no commercial contract terms were placed before it for adjudication

Reasoning

The 1st Respondent argued the MOU was commercial, relying on Karisa Chengo and Owners of Motor Vessel 'Lillian S'. The Court examined the issues as framed in the memorandum of claim - unfair labour practices, unlawful outsourcing, and breach of the recognition agreement and CBA - and found them within the Court's exclusive jurisdiction under Article 162(2)(a) and Section 12(1) of the ELRC Act, applying USIU v Attorney General. No commercial contract terms were before the Court.

p. 5
02

Locus standi of the Applicant

Holding

The Claimant has locus standi as a registered trade union in the sector with a valid recognition agreement and CBA with the 1st Respondent

Reasoning

The 1st Respondent had contested the Applicant's standing. The Court found that the union is registered in the sector in which the 1st Respondent operates, holds both a valid recognition agreement and CBA, and is therefore properly before the Court in its own right and on behalf of its members.

p. 5
03

Validity of the CBA despite its stated expiry

Holding

A valid CBA exists; it remains in force after its stated duration until replaced, because its terms are incorporated into individual employment contracts upon registration under Section 59(3) of the Labour Relations Act

Reasoning

The 2nd Respondent argued the CBA had expired. The Court invoked Section 59(3) of the Labour Relations Act and Clause 38.0 of the CBA, which provides that until a new agreement is agreed upon, the existing agreement remains in force. Even termination of the union-employer relationship would not terminate the CBA once registered.

p. 5
04

Whether the Applicant established a prima facie case for injunctive relief

Holding

No prima facie case was established; what was implemented was the agreement of 9th June 2021 for GIS data clean-up, not the MOU dated 5th February 2020, and the suit was grounded on a mistaken belief

Reasoning

Applying Giella v Cassman Brown, the Court had to be satisfied of a prima facie case and irreparable harm. The MOU under scrutiny provided for NYS recruits to undertake meter reading, but the evidence showed the implemented contract was a GIS data clean-up exercise with no reference to the MOU. The Claimant's complaint of failure to consult was premised on the mistaken belief that the launched event concerned the MOU. Neither prima facie case nor irreparable harm was demonstrated, so the injunction was declined.

p. 8

Legal principles established

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  • A CBA does not expire upon the lapse of the period stated on its face; upon registration its terms are incorporated into the employment contracts of covered employees and it remains in force until replaced or reviewed
  • The ELRC has exclusive jurisdiction over disputes concerning recognition agreements, CBAs and unfair labour practices, including constitutional claims ancillary to employment and labour relations

Court orders

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  1. 1.The orders sought in the application dated 15th July 2021 are declined
  2. 2.The Claimant and the 1st Respondent are encouraged to hold consultations in the manner provided in both the recognition agreement and the collective bargaining agreement
  3. 3.The suit shall be mentioned on 16th May 2022 for parties to address the Court on the way forward
  4. 4.There shall be no orders for costs of this application
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12(1) of the Employment and Labour Relations Court Act

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 Trades and Allied Workers Union v Kenya Power and Lighting Company Limited & another [2022] KEELRC 785 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/785/eng@2022-02-15

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