Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v Board of Management Bishop Sulumeti Girls High School (Employment and Labour Relations Cause E003 of 2023) [2023] KEELRC 2200 (KLR)
The bottom line
#A Kenyan court ruled that expired CBAs stay in force until replaced, and that courts cannot force employers or unions to accept terms—only to negotiate.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was entitled to a declaration that the respondent's refusal to negotiate a new CBA was unfair and unlawful
The claim was not merited against the respondent alone; the failure to negotiate was attributable to both parties and the conciliator's finding against the respondent was inconsistent with his own notes
The court reviewed the conciliator's report and the parties' correspondence. The conciliator found the respondent lacked intention to conclude the CBA, yet also recorded that the union skipped meetings. The court concluded both parties caused the delay, the respondent remained committed to negotiations, and collective bargaining being voluntary, the appropriate remedy was to direct the parties to negotiate and conclude a CBA within 45 days, reverting to conciliation if terms could not be agreed.
Whether the 2018 CBA expired on June 30, 2019
The CBA remained in force despite its end date, by virtue of clause 45
Clause 45 of the CBA provided that the agreement, effective July 1, 2017 to June 30, 2019, would remain in force until amendments are made. The court held that the agreement survived its stated end date until a new CBA was concluded, meaning there was no vacuum in the terms governing the parties.
Whether the court can compel or set terms of a CBA
No - collective bargaining is voluntary and the court cannot impose CBA terms; it may only direct the parties to negotiate
Relying on Article 41(5) of the Constitution, ILO Convention No. 98 article 4, and the decisions in Teachers Service Commission v KNUT and UNRISK v KIRDI, the court affirmed that collective bargaining is neither compulsory nor automatic, and that it is not the court's responsibility to set CBA terms; parties should negotiate voluntarily, and failing agreement, seek conciliation at the relevant Ministry before returning to court.
Legal principles established
#- Collective bargaining is voluntary; the right to engage in it is founded on social dialogue, freedom of contract and autonomy of parties
- A CBA that has reached its stated end date remains in force until amendments are made, per the agreement's own clause
- An employer who has recognised a trade union shall conclude a collective agreement under section 57 of the Labour Relations Act
Court orders
#- 1.The parties to proceed to negotiate and conclude a new validly negotiated CBA and present the same to the relevant court for registration within 45 days of the order
- 2.Should the parties fail to agree on any term or issue, they should approach the relevant Ministry and obtain conciliation before coming to court
- 3.No order as to costs
- Jurisdiction invoked
- Original jurisdiction under the Labour Relations Act following a reported trade dispute and certificate of unresolved dispute; Article 41(5) of the Constitution on collective bargaining
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v Board of Management Bishop Sulumeti Girls High School (Employment and Labour Relations Cause E003 of 2023) [2023] KEELRC 2200 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2200/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.