Cello Thermoware Limited v Kenya Union of Commercial, Food and Allied Workers (Civil Appeal 120 of 2019) [2022] KECA 54 (KLR)
The bottom line
#Kenya's Court of Appeal ruled an employer need not sign a Recognition Agreement unless a union proves, with numbers, it represents a simple majority of unionisable employees.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the learned judge rightly found that the parties agreed to sign a Recognition Agreement
- 2.Whether the learned judge rightly concluded that the respondent had attained the threshold requirements specified by section 54(1) of the Labour Relations Act, and so, was entitled to be recognised by the appellant
Key legal issues
#Whether the parties had agreed to sign a Recognition Agreement
No binding agreement existed; mere expression of an intention to sign did not amount to an agreement, and the matter remained unresolved as evidenced by the referral certificate
The Conciliator's letter of 24th April 2017 recorded a mutual intention to sign the agreement, but no agreement was ever executed. The dispute had nonetheless been referred to court under section 69 of the Labour Relations Act as unresolved. The Court of Appeal held that without an executed agreement, the letter disclosed nothing establishing that a simple majority had been attained, so the trial judge had no basis to conclude that the requirement was met or to order execution of a Recognition Agreement.
Whether the respondent had attained the simple majority threshold under section 54(1) of the Labour Relations Act
The threshold was not met: 21 registered members as at 3rd August 2016 fell short of a simple majority against either 50 or 42 unionisable employees
The court re-evaluated the evidence afresh. Of the four recruitment notifications produced, only two predated the lodgment of the dispute on 3rd August 2016, yielding 21 registered members. The appellant's claim of only 16 members was unsupported by documents. Against 50 unionisable employees the required number was 26; against the respondent's asserted 42 it was 22; in both computations the statutory requirement failed, so the trial judge erred in ordering execution of a Recognition Agreement and CBA.
The weight to be given to a Conciliator's report on a first appeal
A Conciliator's findings are not binding; a trial court that adopts an unsubstantiated Conciliator's conclusion without interrogating the evidence misdirects itself
The learned judge relied on and adopted the Conciliator's conclusion that a simple majority had been reached, but nothing in the Conciliator's letter substantiated that conclusion, and the judge made no independent computation. By failing to take into account matters it ought to have considered, the trial court reached the wrong decision, justifying fresh re-evaluation of the evidence by the appellate court.
Legal principles established
#- An employer is obliged to recognise a trade union for collective bargaining only where that union represents the simple majority of unionisable employees as at the relevant date
- Whether a simple majority has been achieved is a question of fact requiring an arithmetical computation of union members against unionisable employees as at the time the claim is made; a court may not adopt a Conciliator's unsubstantiated conclusion without interrogating the evidence
- Only unionisable employees, not the total workforce, and only numbers as at the date the claim is made, are to be counted in the recognition computation
- On a first appeal the court is duty bound to re-evaluate the evidence afresh where the trial court misdirected itself
Court orders
#- 1.Appeal allowed
- 2.The order of 31st July 2019 directing the parties to execute a Recognition Agreement and to negotiate, execute and register a Collective Bargaining Agreement set aside
- 3.Costs of the appeal to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Employment and Labour Relations Court framework (judgment states: 'This appeal being the first appeal, the court's mandate as set out in Selle vs Association of Motor Boat Co. of Kenya & Others')
Relief refused
#Recognition Agreement / Collective Bargaining Agreement ordered by the trial court
The respondent had not attained the simple majority of unionisable employees required by section 54(1) of the Labour Relations Act; only 21 members were registered as at the date the dispute was lodged
Costs
Costs of the appeal to the appellant ('The order of 31st July 2019 ... be and is hereby set aside with costs to the appellant.')
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.
It is clear from the above that though an intention to sign an agreement may have been expressed, no such agreement was ever signed.
In efiect, whether or not a simple majority specified by section 54 (1) was achieved at a particular point in time is a matter of fact.
Unionisable employees must not be confused with the total work force engaged by the employer.
Given these circumstances, we find it necessary to re-evaluate the evidence afresh so as to arrive at our own independent conclusion.
In sum, the appeal is merited and is allowed. The order of 31st July 2019 directing the parties to execute a Recognition Agreement and to negotiate, execute and register a Collective Bargaining Agreement be and is hereby set aside with costs to the appellant.
Issues in the judgment
#The Coram shows the individual judges' signatures only, with no named author of the single judgment; authorship not attributed to any specific judge
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lokapel v Lokapel (Environment and Land Case 27 of 2014) [2026] KEELC 1435 (KLR)[2026] KEELC 1435 (KLR)11 Mar 2026applied
- Krystalline Salt Limited v Kenya Chemical Workers Union (Civil Appeal E079 of 2022) [2024] KECA 573 (KLR)[2024] KECA 573 (KLR)24 May 2024followed
- Kenya Chemical Workers Union v Krystalline Salt Limited (Cause 77 of 2019) [2022] KEELRC 1124 (KLR)[2022] KEELRC 1124 (KLR)13 May 2022applied
Cite this brief
#Cite this brief
Caselaw, "Cello Thermoware Limited v Kenya Union of Commercial, Food and Allied Workers (Civil Appeal 120 of 2019) [2022] KECA 54 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/54/eng@2022-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.