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ELRCDismissedApplication dated March 13, 2024 (not otherwise numbered in the judgment)· [2024] KEELRC 2166 (KLR)
Kenya Union of Commercial, Food and Allied Workers v Mantrack Limited (Cause E196 of 2024) [2024] KEELRC 2166 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Claimant Union moved the Employment and Labour Relations Court by application dated March 13, 2024, seeking interlocutory orders compelling the Respondent to forward counter-proposals and initiate negotiation of the 2020-2022 Collective Bargaining Agreement, and directing the Parties to negotiate the CBA within 60 days. The application was supported by an affidavit of Andrew Kinyua, the Claimant's Deputy General Secretary, who explained that the Parties had a Recognition Agreement, had concluded past CBAs, and that the Respondent had ignored the Claimant's proposals. After conciliation failed, a certificate of unresolved dispute issued on November 28, 2023. The Respondent opposed through Grounds of Opposition dated June 5, 2024, denying any Recognition Agreement and asserting that past CBAs were negotiated through the umbrella employer, Unilever. Parties agreed to have the application determined on pleadings and submissions. The Court declined the application, holding that the orders sought were unsuitable for interlocutory grant because the existence of the Recognition Agreement was disputed and could only be determined through trial of facts, not by affidavit. Notably, the Conciliator's certificate recorded that the Claimant never confirmed receipt of notification of members' resignations, nor whether it had members at the Respondent, leaving its representational capacity unresolved. The Court held that CBAs are negotiated by a union on behalf of an existing and identifiable bargaining unit, and that the Claimant's capacity could only be determined on the Parties' evidence. The application was declined with costs in the cause.
Key legal issues
#01
Suitability of the relief sought for interlocutory determination
Holding
The application was declined; the disputed existence of a Recognition Agreement and the Claimant's representational capacity can only be resolved at trial on evidence
Reasoning
The Respondent disputes any Recognition Agreement, asserting past CBAs were executed through the umbrella employer, Unilever. The Conciliator's certificate showed the Claimant never confirmed receipt of members' resignations or whether it had members at the Respondent, leaving its representational standing unresolved. The Court held such disputed factual matters cannot be determined on affidavit and declined the interlocutory orders.
p. 2
Legal principles established
#- Orders compelling CBA negotiations cannot be granted interlocutorily where the claimant union's recognition and representational capacity are disputed and require trial of facts
- A CBA is negotiated and executed by a trade union on behalf of an existing and identifiable collective bargaining unit
Court orders
#- 1.The Application dated 13th March 2024 filed by the Claimant is declined
- 2.Costs in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the interlocutory application; Practice Direction 6[2] of the Electronic Case Management Practice Directions, 2020 cited for electronic release
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Mantrack Limited (Cause E196 of 2024) [2024] KEELRC 2166 (KLR)", Case Analysis (2024). Application dated March 13, 2024 (not otherwise numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2166/eng@2024-08-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.