Kenya Glass Workers Union v Kenya Engineering Workers Union; Impala Glass Industries Limited (Interested Party) (Cause E611 of 2021) [2024] KEELRC 2189 (KLR)
The bottom line
#Unions fighting over members must first take the dispute to the Cabinet Secretary for conciliation before going to court, the Employment and Labour Relations Court has ruled.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the parties exhausted the internal dispute resolution mechanisms by referring the trade dispute to the Minister for conciliation before approaching the Court
- 2.Which union should represent the Interested Party's employees
- 3.Whether a trade union whose constitution does not cover a particular sector may represent employees in that sector
- 4.Whether the Interested Party could lawfully effect union dues deductions in the same month it received Form S
Key legal issues
#Exhaustion of internal dispute resolution mechanisms before invoking the Court's jurisdiction
The suit was premature because the trade dispute between the two unions over representation of the Interested Party's employees had not been referred to the Minister for conciliation as required by ss. 62, 67 and 69 of the Labour Relations Act
The court characterised the dispute as a trade dispute under s. 2 of the Labour Relations Act, being a dispute between trade unions and an employer concerning an employment matter including recognition. Since the dispute did not fall within the urgent referrals under s. 74, conciliation under s. 62 had to precede judicial determination. The court invoked the exhaustion principle from its own prior decision and Court of Authority authority.
Whether the employees' constitutional rights under Articles 36 and 41 justified direct court intervention
Although employees have the right to join any union of their choice, the non-participation of the employer in the proceedings justified referral to the Minister to hear all parties
The court acknowledged the employees' freedom of association under the Constitution and s. 4 of the Labour Relations Act but held that the administrative route was more appropriate since the employer had not participated in the proceedings and the Minister could hear all parties and provide a holistic solution.
Sectoral scope of trade union representation under s. 14(1)(e) of the Labour Relations Act
Argued by the Claimant but not determined on the merits; the court declined to rule because the matter was referred to conciliation
The Claimant submitted that the Respondent's constitution, confined to general mechanical engineering and metal allied manufacturing industries, could not cover glass industry workers, and relied on s. 14(1)(e) of the Labour Relations Act. The Respondent countered that the closed-shop limitation contradicted Articles 36 and 41. The court made no finding, deferring the dispute to conciliation.
Legal principles established
#- Where a dispute resolution mechanism exists outside the courts, it must be exhausted before judicial jurisdiction is invoked; courts are fora of last resort
- A trade dispute concerning the allocation or representation of employees must first be reported to the Minister for conciliation under s. 62 of the Labour Relations Act unless it falls within the urgent referrals in s. 74
Court orders
#- 1.The dispute is referred to the Minister to be resolved in 60 days and a report filed before the court for the recording of final orders or other directions
- 2.The matter to be mentioned on November 11, 2024 for further directions
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Labour Relations Act, 2007 (ss. 2, 62, 67, 69, 74); exhaustion under Fair Administrative Action Act s. 9
Relief refused
#Declaration that the Respondent's actions in recruiting the Claimant's members were null and void ab initio; order restraining the Respondent from recruiting; permanent order restraining the Interested Party from deducting and remitting union dues to the Respondent
The dispute was not listed as an urgent referral under s. 74 of the Labour Relations Act and the parties had not exhausted conciliation before the Minister under s. 62
Costs of the claim
No costs order was pronounced; the court referred the dispute to conciliation instead
Costs
No costs order made in the judgment as reproduced.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the interest of serving justice to the parties herein the dispute herein is referred to the Minister to be resolved in 60 days and a report filed before the court for the recording of final orders or other directions
The matter to be mentioned on November 11, 2024 for further directions.
The exhaustion principle is a fundamental principle of administrative law whose intention is to subject disputes to available formal or even informal dispute resolution mechanisms before they are placed before a court of law for determination.
Courts ought to be fora of last resort and not the first port of call the moment a storm brews
Issues in the judgment
#The judgment does not state the case number, full party names, or costs in the extract reproduced; paragraph numbering jumps from 29 to 35 and back, and several passages contain apparent transcription errors
The Respondent's statement of response was given a different cause number from this suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Glass Workers Union v Kenya Engineering Workers Union; Impala Glass Industries Limited (Interested Party) (Cause E611 of 2021) [2024] KEELRC 2189 (KLR)", Case Analysis (2024). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2189/eng@2024-09-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.