Kenya Union of Domestic Workers, Hotels, Educational Institutions and Hospital Workers Union (KUDHEIHA) v Board of Management - Sacred Heart—Mukumu Girls High School (Employment and Labour Relations Cause E019 of 2023) [2024] KEELRC 1015 (KLR)
The bottom line
#Kenya's Employment Court ordered Mukumu Girls' school board to start CBA talks within 15 days, confirming that a pending lawsuit doesn't pause an employer's duty to negotiate.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent could be compelled to negotiate and sign a CBA with the Claimant
Yes. The recognition agreement was in place; the Claimant represented a simple majority of unionisable employees; the pending ELRC Cause E014 of 2023 did not affect the recognition agreement or the duty to negotiate.
The Republic has ratified ILO Convention No. 154 which defines the purpose of collective bargaining. Section 54 of the LRA obliges an employer to recognise a union representing a simple majority of unionisable employees. Recognition had already occurred, and the next lawful step was collective bargaining. The pending termination suit concerned the union's lawful role in representing employees and did not suspend the obligation to negotiate. The conciliator's 'temporary certificate' was unknown in law and could not justify stalling conciliation.
Validity of the conciliator's second certificate dated 4th October 2023 styled a 'Temporary Certificate of Unresolved Trade Dispute'
The certificate was unprocedural and unknown in law; the first certificate of 27th September 2023 was the valid certificate under Section 69(1) of the LRA.
Conciliators exercise statutory powers under the Labour Relations Act. Section 69 deems a dispute unresolved only where the conciliator issues a certificate that it was not resolved, or where the thirty-day period expires. Nothing in the Act empowers a conciliator to issue a 'temporary' certificate, and the second certificate was not even signed by the parties. The conciliator was therefore out of order.
Adequate period for commencement of negotiations
15 days from judgment was sufficient notice for the Respondent's Board to commence collective bargaining sittings, rather than the 7 days sought.
The Respondent argued that 7 days was insufficient to convene its full board. The court considered what constitutes sufficient notice, equating it with adequate or due notice as defined in Black's Law Dictionary, and held that convening the board is an internal matter for the Respondent. Fifteen days was therefore adequate for commencement of negotiations.
Whether the Claimant was entitled to damages of Kshs. 100,000 for unwarranted delays
No. The court declined to make any award for costs/damages in pursuit of harmonious collective bargaining, noting the conciliation stalled due to the conciliator's misplaced advice.
Although the claim generally succeeded, the monetary relief for delay was refused. The court attributed the stalling of conciliation to the conciliator's misplaced advice rather than allocating blame warranting an award, and chose to prioritise harmonious collective bargaining between the parties.
Legal principles established
#- Where an employer has recognised a trade union under Section 54 of the Labour Relations Act, the employer is bound to enter into collective bargaining with the union; a pending suit between the parties does not suspend that obligation.
- A conciliator has no legal power to issue a 'Temporary Certificate of Unresolved Trade Dispute'; under Section 69 of the Labour Relations Act a dispute is unresolved only upon a certificate of unresolved dispute or expiry of the thirty-day period.
Court orders
#- 1.The Respondent is ordered to commence the collective bargaining negotiations within 15 days from the date of judgment
- 2.That the collective bargaining negotiations should be concluded and the agreement registered within the next 45 (forty-five) days from the date of commencement of negotiations
- 3.Each party to bear own costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court under Article 162(2) of the Constitution and the Labour Relations Act, 2007 (Sections 54, 57, 62 and 69)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Domestic Workers, Hotels, Educational Institutions and Hospital Workers Union (KUDHEIHA) v Board of Management - Sacred Heart—Mukumu Girls High School (Employment and Labour Relations Cause E019 of 2023) [2024] KEELRC 1015 (KLR)", Case Analysis (2024). ELRC Cause (Kakamega) – Memorandum of Claim dated 31st October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1015/eng@2024-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.