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Court of AppealPartially AllowedCivil Appeal No. 79 of 2016

Mombasa Maize Millers Limited v Bakery, Confectionery, Food Manufacturing and Allied Workers Union & another [2018] KECA 8 (KLR)

Court of Appeal
19 April 2018
3,563 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a union claiming recognition must prove it has signed up a simple majority of an employer's actual employees, not just produce names on lists.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Mombasa against an award of the Industrial Court (Rika, J.) in I.C. Cause No. 279 of 2014. The 1st respondent union sought a recognition agreement from the appellant employer, alleging it had recruited a simple majority of the appellant's unionisable employees, and claimed deduction and remittance of union dues. The trial Judge found a simple majority had been recruited but, because a recognition agreement already existed with the 2nd respondent union, ordered a ballot among employees at the appellant's three businesses to determine which union they preferred. The Court of Appeal allowed the appeal on two main bases. First, it held that a trade union seeking recognition under Section 54 of the Labour Relations Act must prove not only recruitment of a simple majority but also that the recruited employees are in the employer's employment; the check off lists alone, in the face of the employer's specific objections concerning outsourced and departed workers, did not discharge that burden. Second, the Court held that an existing recognition agreement gives rise to a rebuttable presumption that the recognised union represents a simple majority, a presumption the 1st respondent failed to rebut with cogent evidence. The Court further held that the learned Judge erred in directing balloting, since balloting under section 56(1)(d) of the LRA addresses intra-union disputes, not competition between unions, and a court-ordered ballot infringes employees' freedom of association. The appeal was allowed, the award of 17th March 2016 was set aside and substituted with an order dismissing the 1st respondent's claim with costs, and the appellant and 2nd respondent were awarded costs of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st respondent established, on the evidence, that it had recruited a simple majority of the appellant's unionisable employees as required for recognition under Section 54 of the Labour Relations Act
  2. 2.Whether the existence of a recognition agreement between the appellant and the 2nd respondent raises a presumption that the 2nd respondent represents a simple majority, and whether that presumption was rebutted
  3. 3.Whether the learned Judge erred in directing balloting of the appellant's employees to choose between the two unions when no such relief was sought in the pleadings

Key legal issues

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01

Burden of proof on a trade union seeking recognition

Holding

The 1st respondent failed to discharge the burden of proving recruitment of a simple majority of the appellant's employees; check off lists alone were insufficient given the employer's specific objections.

Reasoning

The court held that attainment of a simple majority for recognition is a matter of evidence. Apart from check off lists, no other evidence was adduced by the 1st respondent. The appellant had raised specific objections that listed persons were outsourced workers, had left employment, or had not signed the lists. Check off lists may suffice in appropriate circumstances, but here more was needed.

p. 4
02

Presumption arising from an existing recognition agreement

Holding

An existing recognition agreement with the 2nd respondent gives rise to a rebuttable presumption that the 2nd respondent represents a simple majority; the 1st respondent did not rebut it.

Reasoning

Because trade union membership is fluid, a recognised union's membership may drop below a simple majority, but the existence of a recognition agreement and CBAs is proof enough that the recognised union attained the threshold. Rebuttal requires cogent evidence such as resignations, revocation by the National Labour Board, or recruitment of a simple majority by another union under Sections 48(6), 54(5) and 54 of the LRA.

p. 5
03

Court-ordered balloting between competing unions

Holding

The learned Judge erred in directing balloting to determine which union the employees preferred; such an order is beyond the court's mandate and infringes freedom of association.

Reasoning

Following this Court's earlier decision in Railways and Allied Workers Union v Rift Valley Railways Workers Union, balloting under section 56(1)(d) of the LRA is for intra-union disputes, not inter-union rivalries. Directing employees to choose between unions on the court's own motion infringes the right of employees to join a union of their choice under sections 4(1) and 5(1) of the LRA, Article 41 of the Constitution and ILO Convention 87.

p. 5
04

Role of a first appellate court

Holding

This being a first appeal, the Court's role is to re-evaluate, re-assess and re-analyze the evidence and determine whether the trial court's conclusions should stand.

Reasoning

The Court reiterated the settled first-appeal jurisdiction, citing Kenya Ports Authority v Kuston (Kenya) Limited, that it must re-evaluate and re-analyze the evidence before the trial court and give reasons either way before determining whether the conclusions reached by the learned Judge are to stand or not.

p. 4

Legal principles established

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  • For recognition under Section 54 of the LRA, a trade union must establish both that it has recruited a simple majority of unionisable employees and that those employees are in the employment of the employer from whom recognition is sought.
  • Where a recognition agreement is in existence, a rebuttable presumption arises that the trade union subject of that agreement represents a simple majority of unionisable employees.
  • It is not for a court to direct balloting of employees to choose between competing trade unions; balloting under section 56(1)(d) of the LRA is meant for disputes within unions, not between unions.

Court orders

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  1. 1.Appeal allowed
  2. 2.Award of the Industrial Court dated 17th March 2016 set aside and substituted with an order dismissing the 1st respondent's claim
  3. 3.1st respondent's claim dismissed with costs
  4. 4.Appellant and 2nd respondent awarded costs of this appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
Industrial Court (now Employment and Labour Relations Court) at Mombasa
I.C. Cause No. 279 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal from the Industrial Court (Employment and Labour Relations Court)

Relief refused

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1st respondent's claim for a recognition agreement and deduction/remittance of union dues

The 1st respondent failed to prove by evidence that it had recruited a simple majority of the appellant's unionisable employees

p. 5

Costs

The 1st respondent's claim dismissed with costs; the appellant and 2nd respondent shall have costs of this appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

for a trade union to receive the recognition envisaged under Section 54 of the LRA it has to establish first, that it has recruited a simple majority of unionisable employees and secondly, that the said employees are in the employment of the employer it seeks recognition from.
p. 4Requirements for recognition under Section 54 LRA
we find that where there is such a recognition agreement, a rebuttable presumption that the trade union subject of the said agreement represents a simple majority of unionisable employees arises.
p. 4Presumption from existing recognition agreement
balloting pursuant to section 56(1) (d) of the Labour Relations Act was meant to determine disputes within the Unions and not between the Unions.
p. 5Limits of court-ordered balloting
We set aside the award dated 17th March, 2016 and substitute the same with an order dismissing the 1st respondent's claim with costs. The appellant and 2nd respondent shall also have costs of this appeal.
Final orders and disposition

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, "Mombasa Maize Millers Limited v Bakery, Confectionery, Food Manufacturing and Allied Workers Union & another [2018] KECA 8 (KLR)", Case Analysis (2018). Civil Appeal No. 79 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/8/eng@2018-04-19

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