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ELRCPartially AllowedNot stated in the judgment· [2023] KEELRC 2608 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Whizz Photo Limited (Employment and Labour Relations Cause E613 of 2021) [2023] KEELRC 2608 (KLR)

Employment and Labour Relations Court
19 January 2023
MOM. Onyango
602 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court declined to order a company to deduct union dues before trial, ruling that contested facts must be proven through evidence at a full hearing.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court at Eldoret by M. Onyango J in a trade dispute between a claimant union and a respondent employer engaged in sales and distribution of studio equipment. The Claimant's application dated 28th July 2021 sought, pending the hearing of the suit, an order compelling the Respondent to commence deduction and remittance of union dues from employees listed on check-off sheets, priority listing, and costs. The Claimant asserted that in March 2019 it recruited five of five unionisable employees, exceeding the simple majority required for recognition, forwarded a draft Recognition Agreement, and reported the Respondent's refusal to sign it to the Ministry of Labour under Section 62 of the Labour Relations Act. In a Replying Affidavit sworn by director Samir Bhanji, the Respondent contended that three grievants were on compulsory leave due to the Covid-19 pandemic, one had a pending suit (Milimani CMEL E 1464 of 2021), one left employment before signing, one resigned, and one was paid benefits at the labour office; it urged that the application was premature and should be dismissed with costs. After canvassing by written submissions, the court held that the issues were weighty and the veracity of the allegations could only be ascertained by tendering evidence in court. The application was allowed in terms of prayer (iv) only, and the matter was directed to be fixed for full hearing. No costs order was made.

Key legal issues

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01

Whether an interlocutory order compelling deduction and remittance of union dues could issue on the affidavits on record

Holding

No - the court declined to grant the substantive prayers, holding that the weighty issues required evidence at a full hearing, and allowed only the prayer for priority listing

Reasoning

The Claimant sought an order compelling the Respondent to deduct and remit union dues for employees on the check-off sheets, asserting it had recruited five of five unionisable employees, a simple majority, and that the Respondent unlawfully refused to sign a Recognition Agreement reported under Section 62 of the Labour Relations Act. The Respondent disputed entitlement, citing departures, resignation, pending litigation and compulsory leave. The court concluded the contested factual and weighty issues could only be resolved on oral evidence, and accordingly granted only the priority-hearing prayer.

p. 2

Legal principles established

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  • Where weighty issues and contested allegations of fact arise on an interlocutory application, they can only be ascertained by tendering evidence in court at a full hearing

Court orders

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  1. 1.The application dated 28th July 2021 is allowed in terms of prayer (iv) only
  2. 2.The matter be fixed for full hearing

Authorities

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Legislation

  • Labour Relations ActSection 62
Jurisdiction invoked
Not stated in the judgment; the matter is an interlocutory application within a suit before the Employment and Labour Relations Court

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 Whizz Photo Limited (Employment and Labour Relations Cause E613 of 2021) [2023] KEELRC 2608 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2608/eng@2023-10-19

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