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ELRCPartially AllowedNot stated in the excerpt· [2023] KEELRC 2540 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Mr Price Retail Kenya Limited (Employment and Labour Relations Cause E114 of 2022) [2023] KEELRC 2540 (KLR)

Employment and Labour Relations Court
19 October 2023
OKOCHARO KEBIRA
2,880 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court protected union members from employer pressure but refused to force union recognition before a full hearing.

What this practically means

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Executive summary

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The Claimant/Applicant, a trade union, moved the Employment and Labour Relations Court by Notice of Motion dated 15th February 2022 seeking interim orders: (b) restraining the Respondent employer from victimizing, intimidating, coercing, harassing, discriminating, terminating or disciplining its members named in check-off forms; (c) directing the Respondent to commence deducting and remitting union dues; and (d) directing the Respondent to recognize the union and sign a recognition agreement. The union claimed to have recruited a simple majority of the Respondent's 125 unionisable employees, satisfying Section 54 of the Labour Relations Act, but the Respondent refused recognition, asserting its own verification found only 52-53 members willing to join and that 13 employees had expressly instructed it not to deduct dues. The court framed a single issue: whether the orders sought should be granted. Applying Giella v Cassman Brown and Mrao Ltd, the court found prima facie indicators that the Respondent was pressurizing employees to disengage from the union, noting that withdrawal letters were purportedly written after the suit was filed and that employers wield immense power over employees. It granted prayer (b), restraining victimization of the union's members, anchored on Articles 36(1) and 41(2)(c) of the Constitution. However, it declined prayers (c) and (d), holding them to be final reliefs identical to those in the Memorandum of Claim, which cannot be adjudged at an interlocutory stage. The application was allowed only to the extent of prayer (b), with costs in the cause. The ruling was delivered on 19th October 2023 by Ocharo Kebira, Judge.

Key legal issues

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01

Whether interim restraining orders against victimization of union members should issue

Holding

Granted - the timing of employees' withdrawal letters after the filing of the suit suggested prima facie employer pressure, justifying protection of Articles 36(1) and 41(2)(c) rights

Reasoning

The court applied the Giella v Cassman Brown and Mrao tests for a prima facie case. It observed that letters of unwillingness to have dues deducted were purportedly written after the suit was filed, making their timing concerning. Given employers' immense power over employees, the court found prima facie indicators that the Respondent was pressurizing employees to disengage from the union, and protected the constitutional rights of association and trade union participation on an interim basis.

p. 6
02

Whether orders for recognition, signing a recognition agreement, and deduction/remittance of union dues could be granted at the interlocutory stage

Holding

Refused - those prayers are final reliefs identical to the substantive claim and require evidence after a hearing

Reasoning

The court accepted the Respondent's submission, relying on Barclays Bank of Kenya Ltd v BIFU Kenya and Olive Mugenda v Okiya Omtata, that the prayers were in the nature of final relief mirroring the Memorandum of Claim. Contested factual issues such as the simple majority threshold, disputed manager cadres, and employee withdrawals could only be determined after taking evidence at trial.

p. 6

Legal principles established

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  • A court on an interlocutory application must not adjudge the main suit at that stage where the interim orders sought mirror the final reliefs
  • The threshold for an interlocutory injunction is the Giella v Cassman Brown test of prima facie case, irreparable injury and balance of convenience
  • Employers wield immense power over employees, so courts should be alert to employer pressure on employees' union membership in the pendency of a recognition suit

Court orders

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  1. 1.Interim orders restraining the Respondent from victimizing, intimidating, coercing, harassing, discriminating, terminating or disciplining the Claimant/Applicant's members whose names appear in the check-off forms pending hearing and determination of the suit (prayer (b) of the Notice of Motion dated 15th February 2022)
  2. 2.Costs in the cause

Authorities

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Legislation

  • Labour Relations ActSection 54(1)
  • Labour Relations ActSection 48(3)
  • Labour Relations ActSections 48(6) and (7)
  • Employment ActSection 19(1)
  • Constitution of Kenya, 2010Articles 36(1), 41(2), 41(2)(c), 46, 159(2)(d), 48
  • Evidence ActSections 107 and 108
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • ILO Conventions No. 87 and No. 98
  • Gazette Notices No. 11153 of 8th August 2013 and No. 6912 of 2nd September 2016 (Ministerial authorization of deductions)

Cases cited (14)

  • Kudheiha v British Army Training Unit
    [2015] eKLR
  • Kenya Shoe and Leather Workers Union v Crown Industries Limited & Another
    [2017] eKLR
  • Civicon Limited v Amalgamated Union of Kenya Metal Workers
    [2016] eKLR
  • Tailors and Textiles Workers’ Union v Global Apparels EPZ Limited
    [2019] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Mitra Enterprises Limited & Another
    [2021] eKLR
  • Jacton Mangeni Kapoloni v Cabinet Secretary for the National Treasury and Planning & 3 Others
    [2022] eKLR
  • Kenya Chemical and Allied Workers Union v Strategic Industries Limited
    [2016] eKLR
  • Kenya Union of Commercial Food and Allied Workers Union v Housemart Ltd
    [2021] eKLR
  • Barclays Bank of Kenya Ltd v BIFU Kenya
    [2019] eKLR
  • Kenya Union of Commercial Food and Allied Workers v New Yako Supermarket
    [2020] eKLR
  • Kenya Chemical and Allied Workers Union v Bamburi Cement
  • Giella v Cassman Brown & Company Limited
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
  • Olive Mugenda v Okiya Omtata
    [2016] eKLR
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over a trade union recognition dispute (Labour Relations Act No. 14 of 2007); interlocutory application under Certificate of Urgency

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 Union of Commercial, Food and Allied Workers v Mr Price Retail Kenya Limited (Employment and Labour Relations Cause E114 of 2022) [2023] KEELRC 2540 (KLR)", Case Analysis (2023). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2540/eng@2023-10-19

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