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ELRCPartially AllowedELRC Cause (Athi River), Memorandum of Claim dated 19/2/2020· [2024] KEELRC 810 (KLR)

Kenya Commercial Food and Allied Workers Union v London Distillers (K) Ltd; Central Organization of Trade Unions (Interested Party) (Cause 102 of 2020) [2024] KEELRC 810 (KLR)

Employment and Labour Relations Court
12 April 2024
MOMaureen Onyango
4,205 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan employer cannot stop deducting union dues from workers' pay without a formal revocation order from the Labour Cabinet Secretary.

What this practically means

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Executive summary

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The Claimant, a trade union with a recognition agreement dated 6th March 1996 with the Respondent, a distillery company, sued after the Respondent by letter dated 22nd January 2020 stopped deducting and remitting union and COTU dues from its employees, notwithstanding a gazette notice under section 48 of the Labour Relations Act authorising the check-off. The Claimant sought declarations that the stoppage was unlawful and a contravention of sections 48 of the Labour Relations Act and 19 of the Employment Act, payment of outstanding dues with interest, and a conviction and fine for the offence created by section 50(10) of the Labour Relations Act. The Respondent asserted that the union had engaged in unfair labour practices, including recruiting the directors' domestic employees, that it had a right to seek termination of the recognition agreement under section 54(5), and that the suit was sub judice to ten other pending causes. The court framed three issues: sub judice, justification for the stoppage, and entitlement to the orders sought. The first two had been conclusively determined in the ruling of 9th April 2021, which found no multiplicity of suits and held that the stoppage violated section 48. By the date of judgment the Respondent had resumed remitting dues and the National Labour Board had declined to revoke the recognition agreement. The court confirmed the interim orders compelling deduction and remittance and restraining victimisation of union members, directed continued compliance with the check-off order, and restrained threats of terminating the recognition agreement except in compliance with the agreement, Article 41 of the Constitution and section 59 of the Labour Relations Act. The punitive prayers for conviction, fine and imprisonment were not granted. Costs were awarded to the Claimant, assessed at Kshs. 100,000. Judgment delivered virtually on 12th April 2024 by Maureen Onyango, J.

Key legal issues

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01

Whether the suit was sub judice given the ten other pending suits between the parties

Holding

The suit is not sub judice; the issue was conclusively determined in the ruling of 9th April 2021, which found the other suits concerned different subject matters

Reasoning

The Respondent had earlier applied for dismissal of the suit on grounds of multiplicity of proceedings. In its ruling of 9th April 2021 the court found that the cited suits, some filed by the Respondent itself, dealt with different subject matters and that parties are bound by their pleadings. The court held the suit was not sub judice and dismissed that application, so the issue required no fresh determination.

p. 10
02

Whether the Respondent had valid reason to stop deduction and remittance of union dues

Holding

The Respondent had no valid reason; its stoppage of check-off dues violated section 48 of the Labour Relations Act and section 19(1)(f) of the Employment Act, 2007

Reasoning

The parties had a valid recognition agreement and a gazette notice under section 48 of the Labour Relations Act authorising deduction and remittance of union and COTU dues. There was no ministerial order revoking or suspending the gazette notice, and 407 union members had not revoked their membership. The court had already found the stoppage unlawful in its interlocutory ruling and confirmed those orders.

p. 3
03

Whether the Claimant was entitled to the orders sought

Holding

Partially - the court confirmed the interim orders compelling deduction and remittance of dues and restrained threats to terminate the recognition agreement, but declined the punitive prayers for conviction and fine

Reasoning

By the time of judgment the Respondent had resumed deduction and remittance of dues, and the National Labour Board had declined the Respondent's application to revoke the recognition agreement. The court therefore confirmed the orders of 9th April 2021, directed continued compliance with the check-off order, and restrained threats of termination except in compliance with the agreement, Article 41 and section 59 of the Labour Relations Act, with costs to the Claimant.

p. 11

Legal principles established

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  • An employer with a valid check-off order under section 48 of the Labour Relations Act must deduct and remit union dues and cannot unilaterally stop doing so absent a revocation order from the Cabinet Secretary responsible for labour
  • Termination of a recognition agreement must comply with the recognition agreement itself, Article 41 of the Constitution and section 59 of the Labour Relations Act

Court orders

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  1. 1.Confirmation of the orders issued in the ruling of 9th April 2021 directing the Respondent to deduct and remit union dues monthly and restraining it from victimising, coercing, terminating or disciplining union members
  2. 2.The Respondent to continue to deduct and remit union dues as provided by law
  3. 3.The Respondent to refrain from threats of terminating the recognition agreement unless done in compliance with the recognition agreement, Article 41 of the Constitution and section 59 of the Labour Relations Act
  4. 4.The Respondent to pay the Claimant's costs assessed at Ksh. 100,000

Authorities

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Legislation

  • Labour Relations Act, 2007Section 48, sections 48(2) & (3), section 50(10), section 54(5), section 59
  • Employment Act, 2007Section 19(1)(f), (g) & (i), sections 19(4), (5) & (6)
  • Labour Relations Actregistration of trade unions (membership clause of constitution)
  • Constitution of Kenya, 2010Article 41

Cases cited (11)

  • Constitutional Petition No. 326 of 2019 (London Distillers (K) Limited v KUCFAW)
  • Nairobi EL-RC Cause No. 192 of 2016: Kenya Union of Commercial Food and Allied Workers v London Distillers (K) Limited
  • Nairobi EL-RC Cause No. 913 of 2018: KUCFAW v London Distillers (K) Limited
  • Nairobi EL-RC Cause No. 912 of 2018: KUCFAW v London Distillers Limited
  • Nairobi EL-RC Cause No. 127 of 2018: KUCFAW v Condon Distillers (K) Limited
  • Nairobi EL-RC Cause No. 1362 of 2019: KUCFAW v Galot Estate
  • Nairobi EL-RC Cause No. 1639 of 2016: KUCFAW v London Distillers (K) Limited
  • Nairobi ELRC Cause No. 120 of 2019: KUCFAW v London Distillers (K) Limited & others
  • Nairobi ELRC Cause No. 161 of 2019: KUCFAW v London Distillers (K) Limited
  • Nairobi ELRC Cause No. 163 of 2019: KUCFAW v London Distillers (K) Limited
  • Thika ELC 149 of 2019 (directors of the Respondent v domestic employees)
Jurisdiction invoked
Article 41 of the Constitution and the Labour Relations Act, 2007 (employment and labour relations jurisdiction of the ELRC)

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 Commercial Food and Allied Workers Union v London Distillers (K) Ltd; Central Organization of Trade Unions (Interested Party) (Cause 102 of 2020) [2024] KEELRC 810 (KLR)", Case Analysis (2024). ELRC Cause (Athi River), Memorandum of Claim dated 19/2/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/810/eng@2024-04-12

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