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ELRCDismissedCause No E491 of 2022· [2023] KEELRC 814 (KLR)

Kenya Engineering Workers Union v M/S Landmark Holdings Limited (Cause E491 of 2022) [2023] KEELRC 814 (KLR)

Employment and Labour Relations Court
27 March 2023
MMM. Mbarũ
1,051 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a union's recognition bid for jumping the queue, ruling it must first exhaust the conciliation process before filing suit.

What this practically means

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Executive summary

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This is a ruling by M. Mbarũ J of the Employment and Labour Relations Court at Mombasa on a notice of motion dated July 4, 2022 by a trade union claimant. The claimant alleged it had recruited 73 of the respondent's 80 employees and served check-off forms, but the respondent refused to recognise it and instead deducted and remitted dues to a rival recognised union, KCSCW&I, contrary to section 48 of the Labour Relations Act, 2007. The claimant sought orders stopping victimisation of its members through redundancy, termination or dismissal for union activities, an order compelling remittance of dues to its bank account, and restraints on remitting dues to or signing a CBA with any other union. The respondent, through the replying affidavit of HR manager Stephen Kamau, alleged forged signatures, duplicated names on check-off forms, and denials of membership by some employees, and filed a preliminary objection on prematurity given a pending conciliation before a Minister-appointed conciliator. The court found no evidence of victimisation, held that rival-union recognition disputes cannot be resolved on affidavit evidence, noted that members may pay dues directly under section 52 of the LRA, and found the suit premature and an abuse of court process. The application was dismissed with costs to the respondent.

Key legal issues

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01

Prematurity of the suit pending conciliation

Holding

The application was premature because a trade dispute had been reported to the Minister and a conciliator appointed but had not convened; filing suit beforehand was an abuse of process

Reasoning

The claimant admitted a dispute existed before the Minister and that it filed suit before the conciliator addressed it. The court found no urgency justifying the suit, and held the application constituted an abuse of court process, dismissing it with costs to the respondent.

p. 3
02

Recognition and check-off dues amid rival unions

Holding

Where a rival union is already recognised and check-off forms are disputed (alleged forgeries, duplicated names), interim orders on dues and recognition cannot issue on affidavit evidence

Reasoning

The respondent averred that many purported members belonged to the recognised KCSCW&I, some denied joining the claimant and some signatures were allegedly forged, with names repeated across forms. The court held these rival-union issues required a full hearing; meanwhile members may pay dues directly under section 52 of the LRA.

p. 2
03

Alleged victimisation of union members

Holding

The general prayers to restrain victimisation were without material justification

Reasoning

The supporting affidavit of Nyamwata contained no evidence of victimisation, redundancy notices or terminations. The court held such general orders could not be granted on unsubstantiated allegations, and that recognition cannot be sought through unsubstantiated claims.

p. 2

Legal principles established

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  • Where rival trade unions exist, one already recognised and the other seeking recognition, affidavit evidence cannot unearth the real issues in dispute and a full hearing is required
  • An employee resigning from a trade union must issue notice to the employer, who must then notify the recognised trade union under section 48(8) of the LRA
  • A union member may pay union dues directly to the union under section 52 of the LRA pending resolution of recognition disputes

Court orders

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  1. 1.The application dated July 4, 2022 is dismissed as an abuse of court process
  2. 2.Costs to the respondent

Authorities

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Legislation

  • Labour Relations Act, 2007section 48 (including 48(8))
  • Labour Relations Act, 2007section 52

Cases cited (1)

  • Kenya Union of Commercial Food and Allied Workers Union v London Distillers (K) Limited; Central Organisation of Trade Unions Kenya (Interested Party)
    [2021] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade disputes and applications under the Labour Relations Act, 2007

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 Engineering Workers Union v M/S Landmark Holdings Limited (Cause E491 of 2022) [2023] KEELRC 814 (KLR)", Case Analysis (2023). Cause No E491 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/814/eng@2023-03-27

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