Kenya Union of Commercial and Food Allied Workers v Heet Supplies Hardware Limited Pemage EA Services Limited (Employment and Labour Relations Cause E033 of 2024) [2025] KEELRC 3775 (KLR)
The bottom line
#A Kenyan court dismissed a union's bid to force a hardware and labour supplier to recognise it because the union could not prove most workers had joined.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Respondent (the host business) is the employer of the labour supplier's employees
No. Working at the premises of the 1st Respondent does not make it the employer; the employer-employee relationship is with the labour supplier (2nd Respondent).
The court held that the mere fact that the 2nd Respondent's employees work at the 1st Respondent's premises does not create an employment relationship with the 1st Respondent. Since the 1st Respondent has no employees among those recruited, no cause of action lies against it and the claim against it fails.
Whether the Claimant is the right union for the sector
Yes, as to the 1st Respondent's retail business, since its constitution covers employees in shops, retail and wholesale outlets and supply companies.
The court found the Claimant union's constitution authorizes it to represent employees in supermarkets, shops, retail and wholesale outlets, and distribution and supply companies, making it the proper union for employees of a hardware retail business. The issue of simple majority nonetheless defeated the claim.
Whether the Claimant achieved a simple majority for recognition under section 54 of the Labour Relations Act
No. The Claimant failed to prove a simple majority of the 2nd Respondent's employees deployed at the 1st Respondent's premises at the time recognition was sought.
The 2nd Respondent claimed 67 employees but did not supply a list or show they all worked at the 1st Respondent's premises. However, the Claimant also failed to analyze the list to prove a simple majority. Applying sections 107, 108 and 109 of the Evidence Act, the burden lay on the Claimant, which did not discharge it on a balance of probability.
Legal principles established
#- Recognition is determined at enterprise level; where an employer is a labour supplier, the union must recruit a simple majority of the employees deployed at the specific enterprise premises, not the supplier's total workforce
- The material time for assessing a simple majority is the date the union seeks recognition, as employment numbers are fluid
- Casual employees and employees on short-term (3-month) contracts are not excluded from union membership or collective bargaining
- The burden of proving a simple majority rests on the union seeking recognition
Court orders
#- 1.The Claimant's suit is dismissed
- 2.Each party shall bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution and the Labour Relations Act (sections 48 and 54)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial and Food Allied Workers v Heet Supplies Hardware Limited Pemage EA Services Limited (Employment and Labour Relations Cause E033 of 2024) [2025] KEELRC 3775 (KLR)", Case Analysis (2025). ELD ELRC CAUSE NO. E033 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3775/eng@2025-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.