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ELRCAllowedCause No 1239 of 2017· [2022] KEELRC 814 (KLR)

Union of National Research Institutes Staff of Kenya v Kenya Industrial Property Institute [2022] KEELRC 814 (KLR)

Employment and Labour Relations Court
14 February 2022
4,360 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that when most employees join a union, the employer must formally recognise it within 30 days—it's a legal right, not the employer's choice.

What this practically means

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Executive summary

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The Claimant, a trade union registered under the Labour Relations Act, 2007 to represent employees in research institutions and similar institutions, sued the Kenya Industrial Property Institute (KIPI), a state corporation under the Industrial Property Act, 2001, seeking orders that it is the rightful union for KIPI's employees and that KIPI sign a recognition agreement. The union had recruited 69 of KIPI's 87 employees and check-off deductions were being remitted from April 2017, but KIPI refused recognition, contending that the union's mandate under Rule 3 of its constitution was confined to research institutions, that KIPI's statutory functions under Section 5 of the Industrial Property Act do not include research, and that recognition would exceed the union's sectoral scope under Clause 11(3) of the Industrial Relations Charter. KIPI also complained of late and incomplete supply of the union's constitution and asserted the claim was premature. The matter was disposed of by written submissions after conciliation before a Cabinet Secretary-appointed Conciliator failed. The Court, per Dr. Jacob Gakeri J, held that applying the ejusdem generis rule, Rule 3 covers the Respondent because research is subsumed in its functions and it performs regulatory functions akin to KEBS and KEHIS. Section 54(1) of the Labour Relations Act obliges an employer to recognise a union representing a simple majority of unionisable employees; recognition is a right, not a privilege, protected by Articles 36 and 41 of the Constitution. The union's evidence of a 79.3% simple majority was uncontroverted. The claim was not premature, both parties bearing fault for the failed conciliation. The Court directed recognition within 30 days, continued check-off deductions, and awarded costs of Kshs.50,000/-.

Key legal issues

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01

Whether the Respondent falls within the scope of the Claimant's constitution (Rule 3) and the industrial trade unionism policy under Clause 11(3) of the Industrial Relations Charter

Holding

The Respondent falls within the broadly defined industry; although not a research institution properly so called, research is subsumed in its functions and it has regulatory functions similar to KEBS and KEHIS listed in Rule 3.

Reasoning

Applying the ejusdem generis rule to Rule 3 of the Claimant's constitution, the Court found the Respondent belongs to the broad class of research institutions and regulators. Neither KEBS nor KEHIS, both listed in Rule 3, identify research as a core statutory function. The no-industrial-groupings appendix to the Charter was never produced. Clause 11(3) obliges promotion of trade unions organised along broadly defined industry irrespective of craft or trade, so the Respondent is covered despite research not being its statutory core function.

p. 4
02

Whether the Claimant attained the simple majority threshold under Section 54(1) of the Labour Relations Act

Holding

The Claimant recruited 69 of 87 employees (79.3%), a simple majority uncontroverted by the Respondent, entitling it to recognition as a matter of statutory mandate and constitutional right.

Reasoning

The Respondent admitted paying the employees' contributions and never denied that the employees on the check-off list were its employees or unionisable, nor alleged coercion. Membership and recognition are constitutional imperatives with prescribed thresholds under Section 54, not matters subject to negotiation between employer and union. Articles 36 and 41 of the Constitution protect the employees' freedom of association and collective bargaining rights.

p. 6
03

Whether the claim was premature given the incomplete copy of the constitution and the failed conciliation

Holding

The claim was not premature; the dispute had dragged on for over a year, conciliation had failed, and both parties were culpable for the failed conciliation.

Reasoning

The dispute was reported to the Cabinet Secretary in August 2016, a Conciliator was appointed on 16 December 2016, and a certificate of unsettled dispute issued on 5 May 2017. The Respondent's board authorised engagement in August 2016 but management only notified the Claimant in December 2016. No serious engagement occurred during conciliation. The inordinate delay defeats the urgency contemplated by Sections 74(5) and 54(7).

p. 6

Legal principles established

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  • Recognition of a trade union representing a simple majority of unionisable employees is mandatory and a right, not a privilege dispensed at the employer's discretion.
  • An employer has no mandate to dictate to employees which trade union they should join.

Court orders

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  1. 1.The Respondent is directed to recognise the Claimant Union within 30 days
  2. 2.The Respondent is directed to continue deducting and remitting union dues of all employees currently in its employment who have signed check off forms
  3. 3.The Respondent shall pay the Claimant's costs assessed at Kshs.50,000/- to cover reasonable expenses and disbursements

Authorities

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Legislation

  • Labour Relations ActSections 4, 5, 8(1)(a) and (b), 54(1)-(8), 62, 73, 74(5), 74(a)
  • Industrial Property Act, 2001Sections 3, 3(f), 5
  • Constitution of Kenya, 2010Articles 36, 41, 48, 159(2)(d)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (5)

  • Kenya Building, Construction, Timber and Furniture Industries Employees Union v King Developers Limited
    [2020] eKLR
  • Micato Safaris v Kenya Game Hunting & another
    [2017] eKLR
  • Fairmont The Norfolk Hotel v the Industrial Court of Kenya
    [2012] eKLR
  • Kenya Export, Floriculture, Horticulture & Allied Workers Union v Kenya Plantation & Agricultural Workers Union and 4 Others
    [2021] eKLR
  • Kenya Chemical & Allied Workers Union v Base Titanium Ltd
    [2013] eKLR
Jurisdiction invoked
Sections 54(7) and 74(5) of the Labour Relations Act, 2007 (recognition disputes referred to the Industrial Court after failed conciliation)

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, "Union of National Research Institutes Staff of Kenya v Kenya Industrial Property Institute [2022] KEELRC 814 (KLR)", Case Analysis (2022). Cause No 1239 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/814/eng@2022-02-14

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