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ELRCDismissedCause No E060 of 2024· [2025] KEELRC 129 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Laxmi Hardware Limited (Cause E060 of 2024) [2025] KEELRC 129 (KLR)

Employment and Labour Relations Court
29 January 2025
2,254 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Employment and Labour Relations Court ruled that a trade union can represent its members in court without a recognition agreement, dismissing an employer's objection.

What this practically means

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Executive summary

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The applicant trade union filed a suit against the respondent, a hardware shop in Kisumu City, together with a Notice of Motion under certificate of urgency seeking orders restraining the respondent from victimising, intimidating, coercing, harassing, terminating, dismissing or disciplining 16 union members whose names appeared on check-off sheets, on account of their trade union membership. The union deponed that it had recruited 16 of a possible 17 unionisable employees (94%), had sent check-off forms and a draft recognition agreement to the respondent, but no recognition agreement or CBA existed. The respondent filed a Notice of Preliminary Objection dated 5th September 2024 contending that the union lacked locus standi under sections 2, 54 and 73(3) of the Labour Relations Act absent a recognition agreement, and that the employees ought to be represented by the Kenya Building Construction, Timber and Furniture Industries Employees Union. The court framed two issues: whether the preliminary objection met the Mukisa Biscuit threshold of a pure point of law, and whether it was merited. Applying Mukisa Biscuit as restated in Hassan Ali Joho, and following the Modern Soap Factory line of authority as upheld by the Court of Appeal, the court held that a recognition agreement is required only for collective bargaining and is not the basis of a union's standing to represent members in court, invoking section 22 of the Employment and Labour Relations Court Act and Articles 36 and 41 of the Constitution. The preliminary objection was dismissed with costs in the cause.

Key legal issues

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01

Whether a preliminary objection on the union's locus standi founded on absence of a recognition agreement is sustainable

Holding

It is not; recognition under section 54 of the Labour Relations Act is only required for collective bargaining and does not govern a union's standing to represent members in court.

Reasoning

Section 54 obliges an employer to recognise a union representing a simple majority of unionisable employees for collective bargaining. The court, relying on Modern Soap Factory (as upheld by the Court of Appeal), held that recognition and representation are distinct roles. Section 22 of the ELRC Act permits union officials to represent parties in proceedings, so absence of a recognition agreement does not defeat the union's standing.

p. 4
02

Whether the objection that another union should represent the employees meets the Mukisa Biscuit threshold

Holding

It does not; the contention offends constitutional freedom of association and fair labour practices and is not a pure point of law.

Reasoning

The court applied the Mukisa Biscuit test as restated in Hassan Ali Joho: a preliminary objection must be a pure question of law on facts not in contest. Whether employees are members of the applicant union is a question of fact, and the employer has no right to choose a union for its employees under Articles 36 and 41 of the Constitution.

p. 5

Legal principles established

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  • A recognition agreement is required only for purposes of collective bargaining and is not the basis upon which a trade union represents its members in court.
  • A trade union that has recruited a simple majority of unionisable employees has locus standi to institute proceedings on behalf of its members even without a recognition agreement.
  • A preliminary objection must be grounded on a settled principle of law whose application to undisputed facts leads to one conclusion.

Court orders

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  1. 1.The Respondent's Notice of Preliminary Objection dated 5th September 2024 is dismissed.
  2. 2.Costs shall be in the cause.

Authorities

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Legislation

  • Labour Relations ActSections 2, 54, 57(1), 73(3)
  • Employment and Labour Relations Court ActSection 22
  • Constitution of KenyaArticles 36(1) and (2), 41, 48, 159(2)(d), 258(2)(d)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (6)

  • Law Society of Kenya V. Commissioner of Lands & Others
    Civil Case No. 464 of 2000
  • Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd
    (1969) EA 696
  • Hassan Ali Joho & Another V. Salesman Said Shabal & 2 Others
    (2014) eKLR
  • Kenya Shoe and Leather Workers Union V. Modern Soap Factory
    (2018) eKLR
  • Kenya Shoe & Leather Workers Union V. Falcon Tanners Ltd
    NBI Cause No. 826 of 2012
  • Modern Soap Factory V. Kenya Shoe and Leather Workers Union
    (2020) eKLR
Jurisdiction invoked
Sections 2, 54 and 57 of the Labour Relations Act and Section 22 of the Employment and Labour Relations Court Act

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 Union of Commercial, Food and Allied Workers v Laxmi Hardware Limited (Cause E060 of 2024) [2025] KEELRC 129 (KLR)", Case Analysis (2025). Cause No E060 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/129/eng@2025-01-29

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