Abyssinia Iron and Steel Limited v Kenya Engineering Workers Union
The bottom line
#Kenya's Court of Appeal confirmed that once conciliation ends, unions and employers can take wage disputes straight to the Employment and Labour Relations Court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned judge had jurisdiction to entertain the issues of wage increment and sick leave under sections 57 and 74 of the Labour Relations Act, and in light of the conciliator's prior determination
- 2.Whether the orders on salary increment and sick leave were justified in the circumstances, considering the appellant's financial status and the conciliator's recommendations
Key legal issues
#Jurisdiction of the ELRC over unresolved CBA terms after conciliation
The ELRC properly assumed jurisdiction; conciliation under Part VIII of the LRA was completed and the conciliator's non-binding recommendations entitled either party to refer the dispute to court.
Article 162(2)(a) establishes the ELRC for employment disputes. Section 74 of the LRA authorises the ELRC to resolve trade disputes referred after failed conciliation. The conciliator issued recommendations that were not adopted by both parties, so the mandatory dispute resolution process was complete and the trial judge properly took jurisdiction.
Weight to be given to the CPMU economic report
The trial judge considered but was not bound by the CPMU report; expert opinion is persuasive only and may be rejected on good and cogent grounds.
The judge directed the CPMU to file an economic report and referred to it in his analysis, noting declining profitability and 13.78% inflation. The report lacked productivity analysis. Citing the Safepak principle, the court held expert opinions are not conclusive and may be rejected where not solidly based.
Justification of the 12% wage increase and 45-day sick leave awards
The awards were justified: the wage increase mirrored the conciliator's recommendation and was grounded on declining profits, inflation and purchasing-power erosion; sick leave was grounded on industry-wide practice.
The learned judge adopted the conciliator's 12% recommendation after evaluating the appellant's declining profit margins, inflation of 13.78% and purchasing power erosion of 6.9%, and relied on section 15(4) of the ELRC Act to make appropriate orders in the interests of justice. No error in fact or law was detected.
Legal principles established
#- The ELRC may only assume jurisdiction over an economic/CBA dispute after the mandatory conciliation process under Part VIII of the LRA has been completed and non-binding conciliator recommendations issued.
- Once a conciliator issues non-binding recommendations, either party may approach the court for determination of the unresolved dispute.
- Courts are not bound by expert opinions; expert evidence is persuasive, not conclusive or binding.
- In determining wage increment, a court must consider productivity, cost of living and the employer's ability to pay, guided by government Wage Guidelines.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Employment and Labour Relations Court at Kisumu
- ELRC Case No.31 of 2019
- Jurisdiction invoked
- First appeal under Rule 31(1) of the Court of Appeal Rules, 2022 from a decision of a superior court exercising original jurisdiction
Relief refused
#All grounds of appeal challenging the ELRC's jurisdiction, the award of 12% wage increase and the 45-day sick leave entitlement
The learned judge properly assumed jurisdiction after completion of conciliation, considered the CPMU report, and the award was justified; no error in fact or law detected
Costs
The appeal was dismissed with costs to the respondent.
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.
The bottom line is that the ELRC can only take jurisdiction to hear an economic dispute after the mandatory dispute resolution process under Part VIII of the LRA has been completed.
It is clear to us that once a conciliator issues recommendation that are not binding, unless adopted by both parties, either party may approach the court for a determination.
Our considered view is that courts are not bound by expert opinions; they are persuasive, not conclusive nor binding.
A court faced with a question of wage increment ought to take into account productivity, cost of living and the ability to pay by the employer.
We detect no error in fact, law or on application of legal principles; and the upshot is that the appeal lacks merit and is dismissed with costs to the respondent.
Issues in the judgment
#Ground of appeal in paragraph 11 asserts the judge 'finding that he lacked jurisdiction' although the appeal elsewhere argues the ELRC lacked jurisdiction; the framing is contradictory.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abyssinia Iron and Steel Limited v Kenya Engineering Workers Union", Case Analysis (2025). Civil Appeal E051 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2210/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.