Kenya Plantation & Agricultural Workers Union v Flamingo Horticulture Kenya Limited (Employment and Labour Relations Cause E049 of 2024) [2025] KEELRC 557 (KLR)
The bottom line
#Kenya's Employment Court ruled that unions must try conciliation under the Labour Relations Act before suing over recognition disputes.
What this practically means
#Executive summary
#Key legal issues
#Exhaustion of statutory dispute resolution mechanisms under the Labour Relations Act
The Claimant ought to have referred the dispute to conciliation under sections 10, 62(1) and 54(6) & (7) of the Labour Relations Act before filing suit; the suit is stayed and referred to a conciliator
The court held that upon receiving the Respondent's letter of 29th May 2024 indicating the requisite union membership threshold had not been attained, the Claimant should have prioritised alternative dispute resolution as provided under the Labour Relations Act. The conciliator would have been better placed to ascertain the membership threshold. This accords with Article 159(2)(c) of the Constitution and Section 15(4) of the Employment and Labour Relations Court Act. While 'may' is not strictly mandatory, exhaustion is obligatory.
Whether the word 'may' in sections 10, 54(6) & (7) and 64 of the Labour Relations Act is discretionary
Although the provision uses 'may' and is not mandatory, the doctrine of exhaustion makes recourse to conciliation obligatory before approaching the court
The Respondent argued the word 'may' was obligatory, relying on Kenya National Highways Authority v Tangerine Investments on statutory interpretation and the legislature's intent. The Claimant relied on Karen Blixen Camp to argue 'may' is discretionary. The court accepted that the provision is not mandatory in form but held that the exhaustion doctrine nevertheless renders resort to the alternative forum obligatory before filing in court.
Court's power to stay proceedings and refer a dispute to conciliation
The court may stay proceedings where it becomes apparent the dispute ought to have been referred for conciliation, mediation or arbitration
The court invoked Section 15(4) of the Employment and Labour Relations Court Act, which permits the court at any stage of proceedings to stay proceedings and refer the dispute for conciliation, mediation or arbitration where it becomes apparent the dispute ought to have been so referred. This, together with the constitutional command under Article 159(2)(c) to promote alternative dispute resolution, grounded the stay and reference to a conciliator.
Legal principles established
#- Where a statute provides an alternative dispute resolution mechanism, the doctrine of exhaustion requires a party to pursue it first before invoking the court's jurisdiction, in keeping with Article 159(2)(c) of the Constitution
- When the Constitution or an Act of Parliament outlines a specific procedure for addressing grievances, that procedure must be strictly adhered to
Court orders
#- 1.The Preliminary Objection is allowed
- 2.The matter is stayed and referred to a conciliator of the parties' choice
- 3.The parties are given 60 days to meet the conciliator and the case will be mentioned on 12th May 2025 for a progress report
- 4.Costs of the Preliminary Objection are in the cause
- Jurisdiction invoked
- Articles 41, 159(2)(c) of the Constitution; Labour Relations Act, 2007; Employment and Labour Relations Court Act, Section 15(4)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation & Agricultural Workers Union v Flamingo Horticulture Kenya Limited (Employment and Labour Relations Cause E049 of 2024) [2025] KEELRC 557 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/557/eng@2025-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.