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Court of AppealAllowedNot stated in the judgment

Galot Estate Kiambu & another v Kenya Union of Commercial Food & Allied Workers & another (Civil Appeal 362 of 2019) [2025] KECA 690 (KLR)

Court of Appeal
11 April 2025
2,871 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a union's employment claim because it skipped the mandatory conciliation process required before going to the Employment and Labour Relations Court.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal (Karanja, Korir and Odunga, JJA) against a ruling of H. Wasilwa J. of the ELRC delivered on 9th July 2019 in Nairobi ELRC Cause No. 120 of 2019, dismissing preliminary objections by Galot Estate Kiambu and Mohan Galot to a claim by the Kenya Union of Commercial, Food & Allied Workers against Galot Estate and London Distillers (K) Ltd. The trial Judge had struck out Mohan Galot as wrongly sued but declined to uphold the remaining grounds, including want of locus standi and breach of section 62 of the Labour Relations Act. The Court of Appeal held that the section 62 point was a proper preliminary objection under the Mukisa Biscuit principle, since it raised a pure point of law going to jurisdiction. On the merits, the Court found the union had invoked conciliation by a letter of 14th February 2019 on the same issues but had filed its claim before the conciliation process concluded, without showing that any statutory exception in section 73(2)(a) permitted bypassing conciliation. Reading section 73 as a whole, the Court held that a trade dispute may be referred to the ELRC only after conciliation fails, and that the conditions for leapfrogging Part VIII had not been met. The Court accordingly allowed the appeal, set aside the ruling and order of 9th July 2019, upheld the appellants' preliminary objection and struck out the union's claim dated 26th February 2019 in its entirety. Taking into account that the appeal arose from the trial court's failure to rule conclusively and the union's funding structure, each party was ordered to bear its own costs of the appeal and the proceedings before the ELRC.

Questions the Court framed

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

  1. 1.Whether the learned Judge exercised her discretion judiciously in declining to uphold the appellants' preliminary objection that the claim offended section 62 of the Labour Relations Act (mandatory conciliation).
  2. 2.Whether non-compliance with section 62 of the Labour Relations Act was a proper ground for a preliminary objection and whether it defeated the ELRC's jurisdiction.
  3. 3.Whether the 1st respondent had locus standi for want of a recognition agreement and authority to represent the grievants.

Key legal issues

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01

Compliance with section 62 of the Labour Relations Act as a jurisdictional prerequisite

Holding

Conciliation under Part VIII of the Labour Relations Act is mandatory before instituting a claim in the ELRC; the 1st respondent neither awaited the conclusion of the conciliation process nor demonstrated any statutory basis for bypassing it, so the ELRC lacked jurisdiction.

Reasoning

The parties agreed the union had invoked section 62 by letter dated 14th February 2019 on the same issues later framed in the claim, but the claim was filed before the conciliation process concluded. Section 73(2)(a), relied on by the respondent, cannot be read in isolation: it sets out conditions for leapfrogging Part VIII, and the respondent proved neither failure of conciliation nor any of those conditions. Non-compliance with a statutory dispute-resolution mechanism is a pure point of law fit for a preliminary objection and disposes of the claim.

p. 5
02

Threshold of a preliminary objection

Holding

The section 62 point met the Mukisa Biscuit threshold because it was a point of law arising from the pleadings capable of disposing of the claim as it related to jurisdiction.

Reasoning

Relying on Mukisa Biscuit as restated by the Supreme Court in Joho & Another vs. Shahbal, the Court held that an objection grounded on failure to exhaust statutory conciliation raises a pure point of law, assumed to be true on the pleaded facts, and requires no ascertainment of facts or exercise of discretion.

p. 4
03

Appellate interference with discretion on a first appeal

Holding

The Court of Appeal may interfere where the trial judge misdirected herself or failed to consider matters she should have considered, resulting in a wrong decision or misjustice.

Reasoning

Applying Mbogo & Another vs. Shah, the Court found the learned Judge failed to render herself on the section 62 ground, which would have resolved all the other grounds in the preliminary objection; that failure of consideration justified upsetting her discretionary ruling.

p. 6

Legal principles established

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  • Under section 62 and Part VIII of the Labour Relations Act, conciliation is a mandatory prerequisite before a trade dispute may be referred to the ELRC; the exceptions in section 73(2) cannot be read in isolation and the party bypassing conciliation must show the statutory conditions are met.
  • Where a claim is filed in breach of the mandatory conciliation machinery, the ELRC lacks jurisdiction and the claim is liable to be struck out.

Court orders

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  1. 1.Appeal allowed.
  2. 2.Ruling and order of the ELRC made on 9th July 2019 set aside.
  3. 3.Appellants' preliminary objection upheld.
  4. 4.1st respondent's claim dated 26th February 2019 struck out in its entirety.
  5. 5.Each party to bear their own costs of the appeal and the proceedings before the ELRC.

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court, Nairobi
ELRC Cause No. 120 of 2019
Jurisdiction invoked
First appeal to the Court of Appeal from the Employment and Labour Relations Court (statutory first appeal); no specific constitutional or statutory provision cited in the judgment.

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.

we must allow the appeal, set aside the ruling and order of the ELRC made on 9th July 2019. Consequently, we uphold the preliminary objection by the appellants and strike out the 1st respondent's claim dated 26th February 2019 in its entirety.
p. 6Final orders - disposition
the order that finds favour with us in respect to costs, and which we hereby issue, is that each party shall bear their own costs of the appeal and the proceedings before the ELRC.
p. 6Costs order
Section 73(1) is clear that a trade dispute can only be referred to the court by a party to the dispute where it is not resolved after conciliation.
p. 5Mandatory conciliation under the Labour Relations Act
Flowing from the fact that the conciliation process had not been exhausted by the 1st respondent at the time the claim was filed, it follows that none of the parties could enjoy the jurisdiction of the ELRC by referral.
p. 6Jurisdiction of the ELRC conditional on exhaustion of conciliation
a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.
p. 3Definition of a preliminary objection

Issues in the judgment

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minor

Case title/number not stated: the judgment opens with 'This appeal arises from a ruling...' and never gives the appeal's own case number or neutral citation.

minor

The judgment describes both the trade union (1st respondent) and London Distillers (K) Ltd as '2nd respondent' in places, an internal inconsistency in the party designations.

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, "Galot Estate Kiambu & another v Kenya Union of Commercial Food & Allied Workers & another (Civil Appeal 362 of 2019) [2025] KECA 690 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/690/eng@2025-04-11

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