Kenya Union of Road Contractors and Civil Engineering Works v China Road & Bridge Corporation; Kenya Building Construction Timber & Furniture Employees Union (Interested Party) (Cause E117 of 2022) [2023] KEELRC 2135 (KLR)
The bottom line
#A Kenyan court dismissed a union's recognition claim because it lacked proof that employees had formally resigned from the existing union.
What this practically means
#Executive summary
#Key legal issues
#Recognition of a trade union under section 54(1) of the Labour Relations Act
Recognition requires documentary evidence that the union has recruited a simple majority of the unionisable employees; the claimant did not discharge this evidential burden.
The court applied section 54(1) and the case law holding that simple majority is a matter of evidence. The claimant relied on Form S listing 728 employees, but the Interested Party held a recognition agreement since 1987 and a running CBA, and no resignation letters from its members were produced. Without proof of resignation, membership transfers to the claimant were not validly established.
Deduction and remittance of union dues under section 48 of the Labour Relations Act
An employer shall not deduct dues from an employee who has notified the employer in writing of resignation from a union; absent such resignation, the respondent was not obliged to remit dues to the claimant.
Section 48 protects employees who resign in writing from a union. Since no resignation letters were produced showing the respondent's employees had left the Interested Party, the claimant's demand for deduction and remittance of dues, and payment of unremitted dues from the respondent's own account, failed.
Competition between unions for membership
A new union may lawfully compete for and recruit members, but recruitment must comply with the Labour Relations Act.
The court acknowledged the claimant's right to campaign and persuade unionisable employees in establishments previously dominated by older unions, but stressed that such recruitment must follow the statutory requirement of resignation from an existing union before joining another.
Legal principles established
#- Attainment of a simple majority under section 54(1) of the Labour Relations Act is a matter of evidence, and a trade union may lose accrued recognition if its numbers drop below the simple majority threshold
- One establishment cannot have two unions representing its workers and a unionisable employee cannot belong to more than one union
- A union may not validly recruit employees who are members of a union holding recognition and a running CBA without evidence of their resignation from that union
Court orders
#- 1.The claim is dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Jurisdiction over the trade union dispute under the Labour Relations Act (dispute referred under section 62 following conciliation); not expressly cited as a constitutional provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Road Contractors and Civil Engineering Works v China Road & Bridge Corporation; Kenya Building Construction Timber & Furniture Employees Union (Interested Party) (Cause E117 of 2022) [2023] KEELRC 2135 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2135/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.