Ashton Mombasa Apparel (EPZ) Limited v Tailors and Textile Workers Union (Cause E014 of 2024) [2025] KEELRC 444 (KLR)
The bottom line
#A Kenyan court ruled an EPZ garment maker victimised union officials but the union hadn't yet won recognition, and both sides got partial wins.
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 have engaged in unfair labour practices
- 2.Whether the threshold for recognition has been achieved
- 3.Whether the claim should be allowed
- 4.Whether the counterclaim should be allowed
- 5.Who should pay the costs?
Key legal issues
#Whether the respondent achieved the recognition threshold
The respondent had not attained the simple majority required under section 54 of the LRA; membership stood at 38.8%, 39.8% and 30.4% in January, March and May 2024 respectively
The court examined employer records kept under sections 74 and 10(6) of the Employment Act and found membership oscillating well below 50% due to the fixed-term nature of contracts. Recognition cannot transfer from a predecessor entity and must be secured afresh under section 54 of the LRA. Further, the dispute ought first to have been referred to conciliation under section 54(6) before filing suit.
Whether the summary dismissal of the 12 employees was lawful
The dismissal was procedurally and substantively unfair; no section 41(2) hearing was accorded and the CCTV footage did not show any assault
The claimant alleged the 12 employees violently assaulted managers on 29 January 2024, justifying summary dismissal under section 44 of the Employment Act. However, the CCTV footage produced showed no assault or violence, and the linkage between the footage and the P3 forms was lost. No hearing or notice to make representations was given, and section 41(2) is mandatory even for gross misconduct and fixed-term contracts.
Whether unfair labour practices were committed
Targeting union representatives and shop stewards for dismissal and non-renewal amounted to unfair labour practices violating Article 41 of the Constitution and section 46 of the Employment Act
The RTF acknowledged the elected shop stewards and undertook no victimization and no blacklisting, yet the claimant dismissed the 12 employees including 8 union officials and did not renew contracts of union members. Membership in or participation in trade union activities is not a fair reason for dismissal under section 46 of the Employment Act.
Whether fixed-term contracts could lapse without notice
Fixed-term contracts lawfully lapse by effluxion of time without notice or reasons, but early termination requires due process
The court affirmed that employers may allow fixed-term contracts to lapse at the sunset date, relying on authority that a court cannot rewrite freely negotiated contracts. However, where an employer terminates before the due date, as with the 12 employees, the mandatory procedural protections of sections 35 and 41 of the Employment Act apply and payment of the full contract sum does not sanitize unfairness.
Whether an RTF presupposes prior industrial action
The RTF was an admission that a go-slow and withdrawal of labour occurred, affecting production and leading to closure of two units
The court accepted that the execution of a return-to-work formula on 2 February 2024 under the chairmanship of the County Commissioner and Labour Officer acknowledged preceding industrial action, relying on authority that an RTF is unlikely without a preceding stoppage. However, the RTF was not regularized through the conciliation mechanism of the LRA, and the 3 February 2024 address by politicians could not be blamed on the union.
Legal principles established
#- Recognition of a trade union requires a simple majority of the employer's unionisable employees under section 54 of the LRA and disputes on recognition must first go to conciliation
- Pending recognition, the employer has a legal duty to deduct and remit trade union dues for unionized employees
- Summary dismissal under section 44 of the Employment Act is not absolute and must comply with the mandatory hearing requirement of section 41(2), even for fixed-term employees and even where the full contract sum is paid
- Summary dismissal of employees for union activities and election as shop stewards violates Article 41(1) of the Constitution and section 46 of the Employment Act and constitutes unfair labour practice
- Unfair labour practices encompass all conduct prior to, in the course of, during and after termination of employment
Court orders
#- 1.Declaration that on 2 January 2024 and by 25 March 2024 the respondent had not attained the threshold for recognition by the claimant
- 2.Finding that the claimant engaged in unfair labour practices leading to the termination of 12 employees
- 3.General damages for unfair labour practices awarded at 3 months gross pay to each of the 12 employees
- 4.Compensation for unfair termination of employment awarded at 3 months gross pay to each of the 12 employees
- 5.Notice pay awarded for one month to each of the 12 employees
- 6.Parties to tabulate the dues and file for adoption on 20 March 2025
- 7.Parties to engage in negotiations under the RTF dated 2 February 2024 to assess the parameters upon which the respondent shall recruit members in the employment of the claimant to achieve the recognition threshold
- 8.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- First-instance jurisdiction of the Employment and Labour Relations Court under Article 41 of the Constitution and the Labour Relations Act (not expressly stated in judgment)
Relief refused
#Claimant's declarations that any strike or industrial action without prior conciliation would be unprotected/illegal, conservatory order and permanent injunction restraining the respondent from industrial action
The court found the threshold for recognition had not been attained but did not grant the prohibitory reliefs; it instead found the claimant engaged in unfair labour practices
Counterclaim for execution of the Recognition Agreement
The respondent had not recruited a simple majority of unionisable employees; recognition is a matter of verifiable numbers
Counterclaim for reinstatement of the 12 dismissed employees
Reinstatement would return the employees to a hostile environment where unfair labour practices were found; instead a re-employment/non-blacklisting approach was ordered
Costs
For continued industrial peace, each party has to bear its costs.
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.
The numbers presented before the court, the respondent membership within the claimant entity is below the simple majority required for recognition.
Without evidence that the claimant complied with section 41(2) of the Employment Act, the Court finds that dismissing the 12 employees, including respondent members, was procedurally and substantively unfair.
Engaging in unfair labour practices cannot be sanitized through payment of a full-term contract.
For continued industrial peace, each party has to bear its costs.
The union representatives were specifically targeted and victimized for unionization.
Issues in the judgment
#Letter by the respondent to the claimant raising victimization complaints is dated 12 February 2021 in the claimant's pleadings although the events occurred in 2024
Paragraph numbering in the judgment skips paragraph 95
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ashton Mombasa Apparel (EPZ) Limited v Tailors and Textile Workers Union (Cause E014 of 2024) [2025] KEELRC 444 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/444/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.