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ELRCPartially AllowedStatement of Claim dated 15th February 2023, filed 21st February 2023 (Employment and Labour Relations Court, Eldoret)· [2023] KEELRC 3343 (KLR)

Kenya Union of Commercial and Food Allied Workers v Bhumi Distributors Limited (Cause E004 of 2023) [2023] KEELRC 3343 (KLR)

Employment and Labour Relations Court
21 December 2023
1,655 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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An Eldoret court ordered an employer to recognise a trade union and deduct dues, warning employers they cannot investigate who signed check off forms.

What this practically means

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Executive summary

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The Claimant, a trade union registered under the Labour Relations Act, sued the Respondent, a limited liability company trading in wholesale and retail in Eldoret, seeking an order for recognition, deduction and remittance of union dues, remittance of arrears from October 2022, and an order that the parties commence collective bargaining within 30 days of signing a recognition agreement. The Claimant alleged that between July 2020 and November 2022 it recruited 23 of 27 unionisable employees, about 86%, exceeding the 51% simple majority required under section 54(1) of the Labour Relations Act, and that it had served check off forms under section 48 which the Respondent ignored. The Respondent denied the claim, asserting 77 employees across Mombasa, Nairobi and Eldoret and that the statutory threshold had not been met. The court framed a single issue: whether the reliefs sought could issue. Relying on sections 10 and 74 of the Employment Act, it held the burden lay on the employer to prove the union had not recruited a simple majority by producing a list of employees; the Respondent failed to prove its alleged 77 employees, its Mombasa headquarters or Nairobi branch, and did not deny the recruitment in the check off forms. The court held an employer served with check off forms must commence deductions and cannot investigate signatures absent an employee complaint. Judgment was entered for the Claimant: recognition agreement to be signed within 30 days, deductions and remittance from employees who signed check off forms, commencement of collective bargaining, and costs assessed at Kshs. 100,000.

Key legal issues

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01

Whether the Claimant recruited the statutory simple majority of unionisable employees entitling it to recognition under section 54(1) of the Labour Relations Act

Holding

Yes - the Respondent failed to discharge its burden of proving otherwise, having failed to produce a list of its employees; the Claimant's case was proved on a balance of probabilities.

Reasoning

Sections 10 and 74 of the Employment Act place responsibility on the employer to keep employment records, so the Respondent bore the burden of proving that the union had not recruited a 51% simple majority. The Respondent alleged 77 employees spread across Mombasa, Nairobi and Eldoret but did not prove that figure, its headquarters, or its Nairobi branch, and did not deny that the employees named in the check off forms had been recruited.

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02

Whether the Respondent was obliged to deduct and remit union dues upon being served with check off forms under section 48 of the Labour Relations Act

Holding

Yes - upon service of check off forms the employer must commence deductions; it cannot make further inquiries absent an employee complaint.

Reasoning

Section 48 requires an employer served with a notice in Form S signed by employees to commence deducting union dues within thirty days. The Respondent did not deny that the Claimant recruited the employees named in the check off forms and should have commenced deductions upon receipt. Further inquiry by an employer would amount to intimidation, and resignation from the union is governed by the statutory notice mechanism.

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03

Whether the Respondent's failure to recognize the Claimant violated Article 41 of the Constitution and ILO Conventions Nos. 87 and 98

Holding

The court found for the Claimant on a balance of probabilities and granted recognition and related reliefs, vindicating the Claimant's right of association claim.

Reasoning

The court framed only one issue - whether the reliefs sought could issue - and resolved it through the statutory recognition and check off framework. Having found the majority threshold met and the Respondent's defence unproved, judgment was entered for the Claimant with recognition, deductions, collective bargaining and costs.

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Legal principles established

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  • An employer must recognise a trade union that represents a simple majority of unionisable employees.
  • The burden rests on the employer, who must keep employment records under sections 10 and 74 of the Employment Act, to prove that a union has not recruited the simple majority.
  • An employer served with check off forms must commence deductions and may not investigate who signed the forms; inquiries are limited to employees who complain of the deduction.

Court orders

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  1. 1.The Respondent is hereby ordered to sign a recognition agreement with the Claimant within 30 days from today.
  2. 2.The Respondent is hereby ordered to deduct and remit union dues from employees who have acknowledged their membership through signing the check off forms.
  3. 3.Parties are directed to commence collective bargaining in the manner provided in the law upon signing recognition agreement.
  4. 4.Respondent to pay the Claimant costs of the Claim assessed at Kshs.100,000 to include reasonable costs and disbursements.
Jurisdiction invoked
Section 54(8) of the Labour Relations Act (dispute referral to the Industrial Court) and Article 41 of the Constitution invoked in the claim

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, "Kenya Union of Commercial and Food Allied Workers v Bhumi Distributors Limited (Cause E004 of 2023) [2023] KEELRC 3343 (KLR)", Case Analysis (2023). Statement of Claim dated 15th February 2023, filed 21st February 2023 (Employment and Labour Relations Court, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3343/eng@2023-12-21

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