Kenya Engineering Workers Union v Rafiki Engineering Ltd (Cause E010 of 2020) [2022] KEELRC 1509 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the respondent's refusal to sign the negotiated CBA was justified
The respondent failed, refused or neglected to execute the duly negotiated CBA for no good cause, contrary to fair labour practices under article 41 of the Constitution
The parties had agreed all terms except the commencement date. The respondent made no counter-proposal on the date and never explained its opposition to November 1, 2018, showing lack of good faith. The status quo clause of the old CBA was not meant to hold indefinitely. Defences based on Covid-19, a drop in union membership after negotiations ended, and a tripartite MOU all failed on the evidence.
The legal effect of the tripartite MOU dated April 30, 2020
The MOU did not legally bind the parties and did not excuse the respondent's refusal to execute the CBA
The court held that an MOU is a gentlemen's agreement not legally binding if a party pulls out, following Rika J in Kenya Engineering Workers Union v East African Foundry Works Limited. Further, the MOU was executed on April 30, 2020, long after negotiations had stalled due to the respondent's refusal to sign, so it could not have contributed to that refusal.
The commencement date of the new CBA
The CBA is effective from July 23, 2020, the date of the certificate of unresolved dispute, applying the maxim that equity treats as done that which ought to have been done
Since the respondent wrongfully withheld execution, the court fixed the commencement date at July 23, 2020 when the conciliator issued the certificate, being the date the CBA ought to have taken effect. For the period before that date the terms of the prior CBA apply, and the new CBA runs for 24 months as per its clause 39.
The Covid-19 and union membership defences
Both defences failed for want of evidence and relevance to the material period
The respondent did not annex audited accounts to show the pandemic's financial impact, and its rent arrears demand predated the pandemic. The alleged drop in union membership below a simple majority was never raised during negotiations from November 2019 to February 2020, so any decline must have occurred after negotiations ended or during the pendency of the suit and was irrelevant to the material period.
Legal principles established
#- A party that refuses to execute a fully negotiated CBA without good cause engages in unfair labour practice contrary to article 41 of the Constitution
- A tripartite MOU is not legally binding and cannot supersede applicable law
- Equity treats as done that which ought to have been done; a wrongfully withheld CBA takes effect from the date it ought to have been executed
Court orders
#- 1.A declaration that the Respondent's refusal to execute the negotiated CBA is unfair, unlawful, in bad faith, and in contravention of fair labour practices
- 2.The parties ordered and directed to sign and execute the CBA within 30 days of the judgment in presence of a suitable witness
- 3.The commencement date of the CBA shall be July 23, 2020 or such other earlier date as the parties may agree within the 30 days
- 4.The claimant is awarded costs of the cause
- Jurisdiction invoked
- Article 162(2) of the Constitution and the Employment and Labour Relations Court Act; trade dispute referred under sections 62 and 69(a) of the Labour Relations Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Engineering Workers Union v Rafiki Engineering Ltd (Cause E010 of 2020) [2022] KEELRC 1509 (KLR)", Case Analysis (2022). Cause No E010 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1509/eng@2022-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.