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Court of AppealPartially AllowedNot stated in the judgment

Cello Thermoware Limited v Kenya Union of Commercial, Food and Allied Workers (Civil Appeal 120 of 2019) [2022] KECA 54 (KLR)

Court of Appeal
4 February 2022
3,000 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The respondent union sued the appellant employer claiming that it had recruited 30 of the appellant's 42 unionisable employees, satisfying the simple majority threshold in section 54(1) of the Labour Relations Act, and was therefore entitled to a Recognition Agreement. After conciliation before the Ministry of Labour failed, the Conciliator issued a referral certificate under section 69. The Employment and Labour Relations Court adopted the Conciliator's findings and, by order of 31st July 2019, directed the parties to execute a Recognition Agreement and to negotiate, execute and register a Collective Bargaining Agreement. The employer appealed. The Court of Appeal framed two issues: whether the parties had agreed to sign a Recognition Agreement, and whether the statutory simple majority threshold had been attained. On the first, the Court found that although an intention to sign had been expressed, no agreement was ever executed, and the Conciliator's letter disclosed nothing showing a simple majority. On the second, the Court re-evaluated the evidence afresh: only 21 members were registered as at 3rd August 2016 when the dispute was lodged, falling short of the required 26 (against 50 unionisable employees) or 22 (against 42). The Court held the Conciliator's unsubstantiated conclusions were not binding and that the trial judge misdirected himself by adopting them without interrogating the evidence. The appeal was allowed, the orders of 31st July 2019 were set aside, and costs were awarded to the appellant.

Questions the Court framed

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

  1. 1.Whether or not the learned judge rightly found that the parties agreed to sign a Recognition Agreement
  2. 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

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01

Whether the parties had agreed to sign a Recognition Agreement

Holding

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

Reasoning

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.

p. 4
02

Whether the respondent had attained the simple majority threshold under section 54(1) of the Labour Relations Act

Holding

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

Reasoning

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.

p. 6
03

The weight to be given to a Conciliator's report on a first appeal

Holding

A Conciliator's findings are not binding; a trial court that adopts an unsubstantiated Conciliator's conclusion without interrogating the evidence misdirects itself

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 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. 3.Costs of the appeal to the appellant

The bench

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

majority
majority
majority
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

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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

p. 6

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

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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.

It is clear from the above that though an intention to sign an agreement may have been expressed, no such agreement was ever signed.
p. 4Recognition Agreement - intention vs executed agreement
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.
p. 5Simple majority as a question of fact
Unionisable employees must not be confused with the total work force engaged by the employer.
p. 5Computation of unionisable employees
Given these circumstances, we find it necessary to re-evaluate the evidence afresh so as to arrive at our own independent conclusion.
p. 4First appeal - duty to re-evaluate evidence
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.
p. 6Final orders - disposition

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.