Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No E105 of 2023· [2023] KEELRC 3079 (KLR)

Kenya Aviation Workers Union v Kenya Airports Authority; Attorney General (Interested Party) (Cause E105 of 2023) [2023] KEELRC 3079 (KLR)

Employment and Labour Relations Court
16 November 2023
3,295 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court allowed KAA to transfer most unionised staff but shielded two national union officials, ruling employers with Recognition Agreements cannot disrupt unions' right to organise.

What this practically means

#

Executive summary

#
The claimant, Kenya Aviation Workers Union, filed two applications: one on 18 September 2023 seeking to restrain the respondent, Kenya Airports Authority, from implementing the transfer of 55 of its shop stewards and officials, alleging the mass transfers of August 2023 were intended to cripple the union's administration and violate Article 41(4) of the Constitution; and one on 29 September 2023 seeking committal to civil jail of the Acting Managing Director & CEO Henry Ogoye and General Manager HR Anthony Njagi for contempt of interim orders issued on 19 September 2023. The respondent justified the transfers of 355 employees as operational and security-driven, pursuant to a transfer policy revived after Covid-19, following a multi-agency meeting. The court framed two issues: whether the respondent should be restrained from implementing the transfers, and whether there was contempt of the 19 September 2023 orders. It held that while the employer has the prerogative to transfer employees, where a Recognition Agreement binds the employer, Article 41(4)(a) and (b) of the Constitution, the LRA and the Employment Act protect the union's right to organise and its officials from far-reaching disruption. However, the affidavits did not afford sufficient material for a substantive order on all transferees, so only the National Trustee Jared M Masinga and Assistant Treasurer Daniel Yatich were directed to retain their current positions; all others were to comply within 14 days with protection from victimisation under Section 46(h) of the Employment Act. The court found no contempt at this stage and ordered each party to bear its own costs, with hearing directions to issue.

Key legal issues

#
01

Whether transfers of union officials and shop stewards infringed the union's constitutional right to organise

Holding

Only the two national officials (the National Trustee and Assistant Treasurer) were protected; the court found the affidavits insufficient for a substantive order on the rest, who were allowed to comply with transfers within 14 days under protection from victimisation

Reasoning

The court acknowledged the employer's transfer prerogative but held that where a Recognition Agreement binds the employer, Article 41(4)(a) and (b) of the Constitution, Sections 4, 6 and 8 of the LRA and Section 46(d) of the Employment Act protect union administration and organisation. National officials performing a national mandate should retain their current stations pending hearing, but the contested factual state of the other transfers required evidence at the main hearing.

p. 6
02

Whether the respondent's officers were in contempt of the orders of 19 September 2023

Holding

No contempt found at this stage

Reasoning

The court observed that since the orders, changes had occurred at the shop floor: some members reported to new stations as directed, others disassociated themselves from the proceedings, and others held onto the court orders. The court declined to find contempt and instead protected employees from victimisation and directed that any disassociation communications be brought to the union's attention under Section 59 of the LRA.

p. 7

Legal principles established

#
  • Where an employer is bound by a Recognition Agreement with a trade union, the employer's transfer prerogative is limited by Article 41(4)(a) and (b) of the Constitution protecting the union's right to determine its own administration, programmes and activities and to organise
  • A trade union representing employees should not be interfered with in undertaking its administrative functions, programmes and activities or the right to organise
  • Employees who trust in and hold onto court orders should not be victimised for doing so

Court orders

#
  1. 1.The court finds no contempt of court orders of 19 September 2023
  2. 2.Jared M Masinga (National Trustee) and Daniel Yatich shall retain their current locations and positions (Masinga moved from Isiolo to JKIA; Yatich moved to Lodwar from JKIA but remains on annual leave) unless there is a mutual agreement between the parties
  3. 3.All other persons issued with letters of transfer shall abide as directed and given 14 days to comply
  4. 4.No member of the claimant addressed in (a) and (b) shall be victimised with regard to matters addressed herein and in terms of Section 46(h) of the Employment Act, 2007
  5. 5.Each party to bear own costs
  6. 6.Hearing directions to issue

Authorities

#

Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17
  • Civil Procedure RulesOrder 51 rules 1 and 4
  • Labour Relations Act, 2007Sections 34, 4, 6, 8, 59
  • Employment Act, 2007Sections 41, 5, 46(d), 46(h)
  • Constitution of Kenya, 2010Articles 41(4)(a) and (b), 36, 27
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 17; Order 51 rules 1 and 4 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Aviation Workers Union v Kenya Airports Authority; Attorney General (Interested Party) (Cause E105 of 2023) [2023] KEELRC 3079 (KLR)", Case Analysis (2023). Cause No E105 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3079/eng@2023-11-16

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