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ELRCPartially AllowedNot stated in the judgment· [2023] KEELRC 3467 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions and Hospitals v BOM Mama Ngina Girls High School (Cause E061 of 2023) [2023] KEELRC 3467 (KLR)

Employment and Labour Relations Court
6 December 2023
MMM. Mbarũ
1,670 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a school must negotiate a collective bargaining agreement with its recognised union within 30 days, rejecting excuses like Covid-19.

What this practically means

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Executive summary

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A registered trade union claimed against the Board of Management of Mama Ngina Girls Secondary School, a respondent established under Section 55 of the Basic Education Regulations, 2013. The parties had a Recognition Agreement effective 24 April 2017, forwarded to the Attorney General in May 2017. From March 2019 the union repeatedly forwarded a CBA proposal and invitations to negotiate, without the respondent's attendance or response. The union sought orders compelling the respondent to conclude and sign a CBA, invoking Articles 36 and 41 of the Constitution and Sections 4, 54 and 57 of the Labour Relations Act, 2007. The respondent denied the validity of the Recognition Agreement, contending that the Deputy Principal who signed lacked written authority, and asserted it had made efforts to negotiate while seeking guidance, citing Covid-19 and economic hardship. The claimant relied on pleadings and the testimony of its representative, Mr Oyondi; the respondent called its principal, Ms Mwanahamisi. The court framed two issues: the validity of the Recognition Agreement and whether it should direct execution of the CBA. It held the agreement valid: the agreement had been signed for the respondent by both the Deputy Principal and a Board of Management Member, the latter unchallenged, and the respondent had never invoked Section 54(5) of the LRA to seek revocation before the National Labour Board nor registered any dispute since 2017. Recognised unions have a right to negotiate a CBA; reliance on the Covid pandemic to avoid negotiations does not foster industrial peace. Following the cited precedents, the court granted the parties 30 days to complete CBA negotiations and present the CBA for registration, ordered each party to bear its own costs to foster good-faith negotiations, and scheduled mention on 22 January 2024 to confirm compliance.

Key legal issues

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01

Validity of the Recognition Agreement signed on 24 April 2017

Holding

The Recognition Agreement is valid; the second signatory, a Board of Management Member, was not challenged, and the employer never sought revocation under Section 54(5) of the LRA.

Reasoning

The agreement was signed on behalf of the respondent by both the Deputy Principal and a Board of Management Member. Only the Deputy Principal's authority was challenged. The respondent had from 24 April 2017 to the hearing to challenge recognition but did nothing. Section 54(5) of the LRA permits an employer to apply to the National Labour Board to terminate or revoke a recognition agreement, and no such application or registered dispute was made.

p. 3
02

Whether the court should direct the respondent to execute/negotiate the CBA

Holding

The recognised union has a right to negotiate a CBA; the court gave the parties 30 days to conclude negotiations and present the CBA for registration.

Reasoning

Upon recognition the claimant acquired the right to negotiate terms and conditions of employment. The respondent's defences - Covid-19 pandemic effects and reliance on reviewed allowances - do not excuse refusal to negotiate, as CBA negotiations cover both financial and non-financial matters and avoiding them does not foster industrial peace. The court followed authorities where employers were directed to negotiate a CBA upon established recognition.

p. 4

Legal principles established

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  • An employer shall recognise a trade union for collective bargaining where it represents a simple majority of unionisable employees
  • An employer dissatisfied with a recognition agreement may apply to the National Labour Board to terminate or revoke it
  • Once a union is recognised, it has the right to negotiate a CBA and to approach the court where the employer refuses

Court orders

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  1. 1.Parties are granted 30 days to complete CBA negotiations and present the same for registration
  2. 2.Each party to bear own costs
  3. 3.Mention on 22 January 2024 to confirm compliance

Authorities

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Legislation

  • Basic Education Regulations, 2013Section 55
  • Labour Relations Act, 2007Section 54(1)
  • Labour Relations Act, 2007Section 54(5)
  • Labour Relations Act, 2007Section 54(8)
  • Labour Relations Act, 2007Sections 4, 54, 57
  • Constitution of Kenya, 2010Articles 36 and 41

Cases cited (2)

  • Union of National Research & Allied Institute Kenya v Kenya Medical Research Institute
    [2013] eKLR
  • Kenya Engineering Workers Union v Kenya Marine Contractors (EPZ) LTD
    Cause No. 152 of 2012
Jurisdiction invoked
Art 36 and 41 of the Constitution and Sections 4, 54 and 57 of the Labour Relations Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Domestic, Hotels, Educational Institutions and Hospitals v BOM Mama Ngina Girls High School (Cause E061 of 2023) [2023] KEELRC 3467 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3467/eng@2023-12-06

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