Bomi Engineering and Construction Company v Kenya Concrete, Structural, Ceramic Tiles, Wood Ply and Interior Design Workers Union (CBA E204 of 2022) [2023] KEELRC 898 (KLR)
The bottom line
#A Kenyan employer failed to undo a signed workers' agreement because it signed willingly, kept silent, and skipped the required step of reporting the strike dispute to the Minister.
What this practically means
#Executive summary
#Key legal issues
#Whether the five pages allegedly added to the CBA constituted fraud justifying revocation of its registration
The five pages are a Schedule to the CBA summarising its contents; the allegation of fraud was unfounded
The court interrogated the form and found it a summary/analysis of the CBA: occupations covered, current and proposed wages, working hours, fringe benefits, and a salary table derived from paragraphs 32 and 33 of the CBA. The court accepted that a first-time CBA employer may not have known the schedule forms must accompany the CBA to the Ministry of Labour.
Whether the registration was procured by misleading the court through an alleged non-existent no-objection letter
The no-objection letter dated 19th September 2022 signed by the Project Manager Yoo Do Hyun is on record and its authenticity was not contested; registration was subject to sight of the letter
The union produced the letter addressed to the Deputy Registrar confirming no objection to registration of CBA E204/2022. The court had recorded registration subject to sight of that letter. Since the letter now stands on the record and the Applicant did not dispute its authenticity, this was not a valid ground for setting aside registration.
Whether the applicant was coerced into executing the CBA
No coercion was demonstrated; no claim of coercion was made until the application was filed, and threat of strike is not coercion
Applying Mohamed Ahmed Abdun & another v Mini Bakeries and John Mburu v Consolidated Bank of Kenya, the court noted that a party claiming duress would ordinarily protest at the earliest opportunity or take steps to avoid the agreement. The Applicant admitted negotiating and executing the CBA and raised coercion only belatedly. Strike threats are legitimate union strategy, not duress.
Whether the court could declare the strike illegal in this application
The strike issue was premature before the court as no dispute over the strike had been reported to the Minister as required by Section 77 of the Labour Relations Act
A strike constitutes a separate course of action that must be reported to the Minister separately. The Applicant did not show how resolving the strike would resolve the registration dispute or why the two should be handled together, nor that it had reported the strike dispute to the Minister.
Legal principles established
#- A dispute concerning a strike may only be referred to the Employment and Labour Relations Court by an employer after the dispute has been reported to the Minister under Section 77 of the Labour Relations Act
- A threat of strike by a union does not constitute coercion or duress, as strike action is an acceptable trade union strategy to compel employers to accede to workers' demands
- Duress vitiating consent requires coercion of the will; commercial pressure is not enough, and the court considers protest, alternatives, independent advice and steps to avoid the contract
Court orders
#- 1.The application by the employer dated 24th October 2022 as amended on 1st November 2022 is dismissed
- 2.No orders for costs - each party to bear its own costs in view of the nature of the dispute
- Jurisdiction invoked
- Registration of collective bargaining agreements under Section 60 of the Labour Relations Act, 2007 and Rule 36(1-3) of the Employment and Labour Relations Court Procedure Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bomi Engineering and Construction Company v Kenya Concrete, Structural, Ceramic Tiles, Wood Ply and Interior Design Workers Union (CBA E204 of 2022) [2023] KEELRC 898 (KLR)", Case Analysis (2023). RCA No. 249 of 2022 (CBA E204/2022); Notice of Motion dated 24th October 2022 as amended on 1st November 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/898/eng@2023-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.