Kenya Aviation Workers Union v Kenya Airports Authority; Attorney General (Interested Party) (Cause E105 of 2023) [2023] KEELRC 3079 (KLR)
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
#Key legal issues
#Whether transfers of union officials and shop stewards infringed the union's constitutional right to organise
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
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.
Whether the respondent's officers were in contempt of the orders of 19 September 2023
No contempt found at this stage
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.
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.The court finds no contempt of court orders of 19 September 2023
- 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.All other persons issued with letters of transfer shall abide as directed and given 14 days to comply
- 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.Each party to bear own costs
- 6.Hearing directions to issue
- 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.