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ELRCDismissedPetition (ELRC) — Mombasa, undated number as presented· [2023] KEELRC 1660 (KLR)

Dock Workers Union of Kenya v Kenya Ports Authority (Petition E013 of 2022) [2023] KEELRC 1660 (KLR)

Employment and Labour Relations Court
29 June 2023
2,902 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 the Dock Workers Union's challenge to Kenya Ports Authority's 2021 HR Manual, saying an earlier pending case must conclude first and blanket orders need proof.

What this practically means

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Executive summary

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The petitioner, a registered trade union representing unionisable employees of the Kenya Ports Authority, petitioned the ELRC at Mombasa seeking declarations that the Human Resource Policy and Procedure Manual, 2021 was unlawfully and unconstitutionally made because it altered CBA terms (notably limiting medical cover for children to four) without following the Recognition Agreement's industrial relations machinery or Article 10 of the Constitution; declarations that conversion of acting employees contravened orders of 10 February 2022 in ELRC Cause No E099 of 2021; judicial review orders to quash the Policy and to compel confirmation of employees acting beyond six months and issuance of appointment letters. The respondent, a state corporation with about 7,800 employees, replied through the affidavit of Irene Mbogho that two related suits (ELRC Cause No E099 of 2021 and ELRC JR No 001 of 2022) were pending over the same issues, rendering the petition sub judice; it explained the Policy arose from a 2020 Presidential Directive transferring Kenya Ferry Services operations to the Authority, and was approved by SCAC and the Cabinet Secretary. Only the petitioner filed submissions, citing Said Ndege and Peter Wambugu Kariuki. The court held the medical cover issue was already pending conciliation in the earlier suit, which ought to be concluded first, rendering the claim premature; the employer retains the statutory mandate under the Employment Act to formulate workplace policies, which cannot be negated by CBA negotiations; and blanket confirmation orders could not issue absent particularisation of affected employees. The petition was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the HR Policy and Procedure Manual, 2021 was unlawfully made in breach of the Recognition Agreement, CBA and Article 10 of the Constitution

Holding

The claim was not determined on the merits; the medical cover alteration is already the subject of ELRC Cause No E099 of 2021 pending conciliation, so the issue is premature in this petition

Reasoning

The petitioner acknowledged that the question of the altered medical cover was before a conciliator in the earlier, still-pending Cause No E099 of 2021. The court held that delving into the same matter would create conflicting orders, and the suit first filed should be concluded first. The petitioner may amend the earlier claim to capture these issues.

p. 4
02

Whether the employer's unilateral policy-making breached Article 41 fair labour practices

Holding

No: the employer has a statutory mandate to formulate workplace policies under Sections 5(8)(c), 6 and 12 of the Employment Act, 2007, and retains the right to organise its structures for productivity and efficiency, which cannot be negated through CBA negotiations

Reasoning

The court recognised that a Recognition Agreement exists only to enable CBA negotiations under Section 54 of the Labour Relations Act, and that the employer's prerogative to organise structures remains. As a state corporation, the respondent is also subject to Articles 230(4) and 234(2)(g) on remuneration and conditions of service in the public service.

p. 6
03

Whether employees acting for over 6 months must be confirmed and issued appointment letters

Holding

The orders cannot issue because the affected employees were not particularised or desegregated; blanket orders would undermine the CBA framework and the employer's operational prerogative

Reasoning

The supporting affidavit failed to identify which cadre or employees are affected among a workforce of about 7,800 following the absorption of Kenya Ferry Services operations. Without desegregation showing how the CBA was impacted, generalised orders cannot issue.

p. 6
04

Legitimate expectation of employees in acting positions

Holding

Any legitimate expectation must be viewed objectively in a legal sense, not merely subjectively; the parties remain bound by CBA terms and the respondent by other statutory procedures

Reasoning

Adopting the Supreme Court's guidance in Kenya Revenue Authority v Export Trading Company Limited, the court held that legitimate expectation is more than a factual question; it must be legitimate viewed objectively in a legal sense. Particularised claims of expectation were absent here.

p. 5

Legal principles established

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  • Section 59(1)(b) of the Labour Relations Act renders CBA terms binding and incorporated into contracts of all unionisable employees
  • An employer retains the right to organise the workplace to ensure productivity and efficiency notwithstanding CBA negotiations; the statutory duty to formulate workplace policies cannot be negated through CBA negotiations
  • Generalised, unparticularised relief affecting an unascertained class of employees cannot be granted; constitutional or judicial review questions in employment matters should ordinarily be framed within a memorandum of claim unless a genuine question of constitutional interpretation or invalidity of a statute is raised
  • Where an earlier suit between the same parties over the same subject matter is pending, it ought to be concluded first

Court orders

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  1. 1.The orders sought in the petition shall not issue
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 41, 230(4), 234(2)(g)
  • Labour Relations Act, 2007Sections 54, 59, 59(1)(b), 9 and 10 of Recognition Agreement referenced
  • Employment Act, 2007Sections 5(8)(c), 6, 12
  • Employment and Labour Relations Court Procedure Rules, 2016Rule 7
  • Kenya Ports Authority Actestablishment of the respondent

Cases cited (6)

  • Said Ndege v Steel Makers Ltd
    [2014] eKLR
  • Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute
    [2013] eKLR
  • Gabriel Mutava & 2 others v Managing Director Kenya Ports Authority & another
    [2016] eKLR
  • Sumayya Athmani Hassan v Paul Masinde Simidi & another
    [2019] eKLR
  • Teachers Service Commission v Kenya Union of Teachers (KNUT) & 3 Others
    [2015] eKLR
  • Kenya Revenue Authority v Export Trading Company Limited, SC Petition 20 of 2020; [2022] KESC 31
    [2022] KESC 31
Jurisdiction invoked
Employment and Labour Relations Court (Article 162(2) Constitution; ELRC Procedure Rules, 2016 invoked as to mode of claim)

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, "Dock Workers Union of Kenya v Kenya Ports Authority (Petition E013 of 2022) [2023] KEELRC 1660 (KLR)", Case Analysis (2023). Petition (ELRC) — Mombasa, undated number as presented. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1660/eng@2023-06-29

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