Kenya Union of Commercial Food and Allied Workers v Gusii Water & Sanitation Company (Cause 3 of 2022) [2024] KEELRC 1866 (KLR)
The bottom line
#A Kenyan employer that refused to negotiate a union CBA, skipped court directions, and offered no evidence of union de-recognition had the union's own proposals imposed as binding terms of service.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on lack of locus standi was sustainable
Dismissed. The objection required ascertainment of facts (whether employees had joined another union) and the Respondent adduced no evidence; it also never applied for de-recognition under Section 54(5) of the Labour Relations Act.
The court held that union recognition rests on a simple majority of the unionisable workforce, but that requirement is continuous and de-recognition requires a formal application to the National Labour Board or a court order. The Respondent made no such application and produced no evidence that its employees joined the Kenya Union of Water and Sanitation. Since the objection turned on facts to be ascertained, it failed the Mukisa Biscuit threshold and was dismissed with costs.
Whether the Claimant's CBA proposals should be adopted as terms of service
Allowed. Given the Respondent's persistent uncooperative conduct and refusal to negotiate or cooperate with the Chief Economist, the court adopted the Claimant's proposals for 24 months from 1st July 2024.
The court traced the history of the matter: a 2021 judgment directing negotiations, non-compliance, an October 2022 ruling directing an economic report by the Chief Economist which was never filed, and repeated disregarding of court directions. Noting the Respondent's uncooperative stance and the unsupported assertion that employees belonged to another union, the court held it had no option but to allow the claim and adopt the Claimant's proposals as the applicable terms of service.
Legal principles established
#- A preliminary objection must raise a pure point of law on the assumption that all facts pleaded are correct; it cannot be raised where facts must be ascertained.
- Recognition of a union rests on a simple majority of the unionisable workforce, which is a dynamic and continuous requirement; however, de-recognition requires an application to the National Labour Board or an order of the court under Section 54(5) of the Labour Relations Act.
- Membership of a trade union is a matter of fact requiring production of evidence; an employer alleging employees have moved to another union must lead evidence to that effect.
- Where a CBA negotiation dispute is unresolved through conciliation, either party may refer it to the court, which may impose terms judiciously based on credible economic reports.
Court orders
#- 1.The preliminary objection dated 5th April 2024 is dismissed with costs
- 2.The Claimant's proposals marked 'A' attached to the Claim are adopted as the terms of service for the Respondent's Unionisable employees for 24 months from 1st July, 2024
- 3.The Respondent is directed to align the terms of service with the adopted proposals within 60 days of the judgment
- 4.In the interest of social partnership, parties are ordered to bear their own costs
- Jurisdiction invoked
- Jurisdiction under the Labour Relations Act to adjudicate unresolved CBA negotiation disputes referred to the Employment and Labour Relations Court, as a follow-up to the judgment of Justice Wasilwa delivered 21st September 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial Food and Allied Workers v Gusii Water & Sanitation Company (Cause 3 of 2022) [2024] KEELRC 1866 (KLR)", Case Analysis (2024). Cause No 3 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1866/eng@2024-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.