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ELRCDismissedCause No 1452 of 2015· [2023] KEELRC 1809 (KLR)

Kenya Concrete, Structural, Ceramic Tiles,Wood Plys & Interior Designs Workers Union v China Wu Yi Company Limited (Cause 1452 of 2015) [2023] KEELRC 1809 (KLR)

Employment and Labour Relations Court
27 July 2023
LNLinnet Ndolo
830 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan union lost its recognition case because it relied on outdated membership records; unions must prove current majority membership with fresh check-off evidence.

What this practically means

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Executive summary

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The Claimant union filed a Memorandum of Claim on August 19, 2015 alleging that the Respondent refused to sign a recognition agreement contrary to Section 54 of the Labour Relations Act, refused to deduct and remit union dues contrary to Section 19 of the Employment Act and Section 48 of the Labour Relations Act, and intimidated and harassed employees. The Claimant asserted it had recruited 182 employees, being 61% of unionisable employees, above the simple majority threshold, and sought a declaration of contravention, an order for deduction and remittance of dues, and an order compelling a recognition agreement and CBA negotiations. The Respondent countered that of 143 employees on the check-off lists, many were not its employees, some signatures were forged, an attempt to deduct dues triggered a go-slow, employees resigned from the union, and the Claimant had recruited only 83 of 338 unionisable employees. At trial the Claimant called its National General Secretary, Dishon Angoya, and the Respondent called its Legal Officer, Josephat Ombogo Maroro. The Court held that union membership is a fluid moving target, that the 2014 check-off forms were stale, and that the Claimant ought to have presented fresh documentary evidence of current membership. Having failed to do so, the Claimant did not prove its case. The claim was dismissed with each party bearing their own costs. Judgment delivered virtually at Nairobi on July 27, 2023 by Linnet Ndolo, Judge.

Key legal issues

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01

Proof of current union membership for recognition

Holding

The claim was dismissed because the Claimant relied on stale 2014 check-off forms and failed to prove present majority membership

Reasoning

Union membership is fluid; employees exit through attrition or revocation. The check-off forms relied on were from 2014 and by trial the projects had been completed and many employees had revoked membership. The Court adopted its reasoning in Transport Workers Union v Modern Coast and held the Claimant was bound to present fresh documentary evidence of current membership, which it did not do, hence failure of proof.

p. 3

Legal principles established

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  • A union seeking a recognition order must present current check-off forms evidencing present membership; stale membership data cannot ground a finding of simple majority

Court orders

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  1. 1.The Claimant's claim is dismissed
  2. 2.Each party will bear their costs

Authorities

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Legislation

  • Labour Relations ActSection 54
  • Labour Relations ActSection 48
  • Employment ActSection 19

Cases cited (1)

  • Transport Workers Union v Modern Coast Coaches Ltd & another
    [2020] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over employment and labour relations disputes

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 Concrete, Structural, Ceramic Tiles,Wood Plys & Interior Designs Workers Union v China Wu Yi Company Limited (Cause 1452 of 2015) [2023] KEELRC 1809 (KLR)", Case Analysis (2023). Cause No 1452 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1809/eng@2023-07-27

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