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ELRCDismissedMemorandum of Claim dated June 30, 2022· [2023] KEELRC 2768 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers (KUDHEIHA) v Board of Management Museno Secondary School (Cause E030 of 2022) [2023] KEELRC 2768 (KLR)

Employment and Labour Relations Court
2 November 2023
CBChristine N. Baari
1,654 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a union's claim for recognition because the union could prove only two remaining members, not a simple majority.

What this practically means

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Executive summary

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The Claimant, a registered trade union representing non-teaching staff, sued claiming that the Respondent employer refused to recognise it and to negotiate a Collective Bargaining Agreement despite a recognition agreement forwarded in 2017, CBA proposals sent in January 2018, and an unresolved trade dispute certified by a conciliator in December 2021. It sought orders compelling the Respondent to commence and conclude CBA negotiations within three months, to deposit the signed CBA for registration under the Labour Relations Act, 2007, and to pay costs, relying on Articles 36 and 41 of the Constitution and on claimed membership of roughly 90% of the unionisable staff. The Respondent countered that only two employees (Margaret Aseyo and Mugowye Bernard) remained union members, the others having retired, died or withdrawn, so the simple-majority threshold in Section 54(1) of the Labour Relations Act was not met. The Court framed two issues: whether the union qualified for recognition and collective bargaining, and whether the orders sought should issue. Relying on Section 54 and precedent establishing that recognition is a matter of verifiable numbers and that a union may lose recognition if its numbers fall below a simple majority, the Court found that the Claimant produced check-off forms for only five employees and failed to rebut the evidence of attrition. Holding the recognition threshold unmet, the Court dismissed the claim in its entirety with no orders on costs. Judgment was delivered at Kisumu on November 2, 2023 by Christine N. Baari, Judge.

Key legal issues

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01

Whether the Claimant union qualified for recognition and collective bargaining

Holding

The Claimant did not meet the simple-majority threshold under Section 54(1) of the Labour Relations Act, as only two of the Respondent's employees remained union members after retirements, deaths and withdrawals, and the Claimant failed to rebut that position

Reasoning

The Court set out Section 54 of the Labour Relations Act and authorities confirming that recognition turns on verifiable numbers. Although the Claimant produced check-off forms for five employees, the Respondent demonstrated that several members had retired, died or withdrawn. The Claimant did not rebut this to the Court's satisfaction, and its allegation that withdrawals resulted from intimidation in fact confirmed that only two members remained. Recognition, and the consequent right to negotiate a CBA, therefore failed.

p. 4
02

Whether the orders sought in the Memorandum of Claim should be granted

Holding

The orders were refused because the foundational right to recognition and collective bargaining was not established

Reasoning

All prayers (commencement and conclusion of CBA negotiations, deposit of the CBA for registration, and good industrial relations) were premised on the union's entitlement to recognition. Having found the recognition threshold unmet, the Court dismissed the entire claim, declining to compel CBA negotiations, and made no orders on costs.

p. 5

Legal principles established

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  • An employer is obliged to recognise a trade union for collective bargaining only where the union represents a simple majority of unionisable employees under Section 54 of the Labour Relations Act
  • Recognition is a matter of verifiable numbers and a union may lose an accrued recognition if its membership drops below the simple majority threshold

Court orders

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  1. 1.The Claim is dismissed with no orders on costs

Authorities

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Legislation

  • Labour Relations Act, 2007Section 54(1), (3), (6), (7), (8)
  • Labour Relations Act, 2007Section 4
  • Labour Relations Act, 2007Section 59(2)
  • Constitution of Kenya, 2010Articles 36, 36(1), 41, 41(2)(c), 41(5)
  • ILO Convention 87null
  • ILO Convention 98null
  • Declaration of Philadelphianull
  • Industrial Relations Charter (1984)null

Cases cited (6)

  • Kenya Hotels and Allied Workers Union v Merryland Hotel Ltd
    [2017] eKLR
  • Kenya Building, Construction, Timber and Furniture Industries Employees Union v Kings Developers Limited
    [2020] eKLR
  • Kenya Chemical & Allied Workers Union v Strategic Industries Limited
    [2016] eKLR
  • Kenya Shoe and Leather Workers Union v Crown Industries Limited & another
    [2017] eKLR
  • Aviation & Allied Workers Union v Air Kenya Express Limited & another
    [2013] eKLR
  • Scientific Research International Technical & Allied Workers Union v Kenya Agricultural Research Institute & another
    [2013] eKLR
Jurisdiction invoked
Referral of an unresolved trade dispute to the Industrial Court under Section 54(7) of the Labour Relations Act, 2007 following a certificate of unresolved dispute

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 Domestic, Hotels, Educational Institutions and Hospital Workers (KUDHEIHA) v Board of Management Museno Secondary School (Cause E030 of 2022) [2023] KEELRC 2768 (KLR)", Case Analysis (2023). Memorandum of Claim dated June 30, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2768/eng@2023-11-02

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