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ELRCOtherNot stated in the judgment text provided

Kenya Concrete, Structural, Ceramic Tiles, Wood Plys & Interior Design Union Workers v Kelco Aluminium Works Limited (Cause E104 of 2022) [2024] KEELRC 365 (KLR)

Employment and Labour Relations Court
28 February 2024
850 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Claimant Union sued the Respondent, a glass manufacturing and supply company, seeking orders that the Respondent deduct and remit union dues, comply with Legal Notice No. 5 of 2022 and Sections 48 and 54 of the Labour Relations Act, sign a Recognition Agreement, commence CBA negotiations within 30 days, and cease intimidating union members. The Union claimed 27 recruited members; the Respondent conceded only 17 members out of a unionisable workforce of 43 and challenged the Union's sectoral competence and the suit's prematurity. The parties agreed to determination on pleadings and submissions without viva voce evidence. Applying Section 54(1) of the Labour Relations Act and the Court of Appeal's decision in Modern Soap Factory v Kenya Shoe and Leather Workers Union, the court distinguished representation (entitling dues collection) from recognition (requiring a simple majority of unionisable employees). Finding the actual membership and workforce figures contested and unproven, the court held that the ends of justice would best be served by a census. It directed the Chief Industrial Relations Officer to designate a Labour Officer to conduct a census at the Respondent's premises to establish all unionisable employees and those belonging to the Claimant Union, with the report to be filed in court within 60 days. The substantive reliefs were therefore neither granted nor refused definitively but deferred pending the census. The court made no order for costs at that stage. Judgment was delivered virtually at Nairobi on 28 February 2024 by Linnet Ndolo, Judge.

Questions the Court framed

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

  1. 1.Whether the Respondent is obliged to deduct and remit union dues to the Claimant Union
  2. 2.Whether the Respondent must recognise the Claimant Union for purposes of collective bargaining
  3. 3.Whether the Respondent should be compelled to negotiate a Collective Bargaining Agreement
  4. 4.Whether the Claimant represents a simple majority of the Respondent's unionisable employees

Key legal issues

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01

Whether the Claimant Union is entitled to recognition and deduction/remittance of union dues

Holding

The court declined to grant the orders sought outright because union membership numbers and the size of the unionisable workforce are contested; it directed a census to establish the facts.

Reasoning

The Respondent conceded some employees were recruited but disputed the claimed 27 members and the asserted workforce of 43. No viva voce evidence was tendered. Recognition under Section 54(1) requires a simple majority, which cannot be established on the contested pleadings. A census by a Labour Officer designated by the Chief Industrial Relations Officer was directed to establish the true membership position, with a report to be filed within 60 days.

p. 3
02

Distinction between representation and recognition

Holding

Representation entitles a union to collect dues from its members; recognition for collective bargaining requires a simple majority under Section 54(1).

Reasoning

Following Modern Soap Factory v Kenya Shoe and Leather Workers Union, the court distinguished the two concepts. The Claimant's conceded recruitment of some members supports representation (dues collection), but recognition depends on the simple majority threshold, which remained unproven and required factual inquiry.

p. 2

Legal principles established

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  • There is a distinction between representation of workers by their trade union and recognition of the trade union by an employer for purposes of collective bargaining.
  • An employer shall recognise a trade union for collective bargaining only if it represents a simple majority of unionisable employees (Section 54(1), Labour Relations Act).

Court orders

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  1. 1.The Chief Industrial Relations Officer to designate a Labour Officer to conduct a census at the Respondent's premises to establish the names and designations of all unionisable employees and those who are members of the Claimant Union
  2. 2.The designated Labour Officer to file their report in court within sixty (60) days from the date of the judgment
  3. 3.No order for costs at this stage

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Relations Act (trade union dues and recognition dispute)

Relief refused

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Order directing Respondent to comply with Sections 48 and 54 of the Labour Relations Act

Deferred pending a census to establish actual unionisable workforce and union membership

p. 3

Order directing Respondent to sign a Recognition Agreement and commence CBA negotiations

Recognition entitlement depends on proof of simple majority, which is contested and unproven on the pleadings alone

p. 3

Order barring the Respondent from intimidating union members

Not granted; court opted for a factual census instead

Costs

No order for costs at this stage

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.

I have considered the pleadings and submissions filed by the parties and have reached the conclusion that the ends of justice will best be served by a census at the Respondent's premises.
p. 3Census directed to establish union membership
I therefore direct the Chief Industrial Relations Oficer to designate a Labour Oficer to conduct a census at the Respondent's premises
p. 3Final orders - census directive
I make no order for costs at this stage.
p. 3Costs
there is a distinction between representation of workers by their trade union and recognition of the trade union by an employer for purposes of collective bargaining.
p. 2Representation vs recognition
An employer, including an employer in the public sector, shall recognise a trade union for purposes of collective bargaining if that trade union represents a simple majority of unionisable employees.
p. 3Section 54(1) Labour Relations Act - recognition threshold

Issues in the judgment

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material

Case title, case number and names of the parties are not stated anywhere in the judgment text provided; the claimant is referred to only as 'the Claimant Union' and the respondent only by description.

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 Concrete, Structural, Ceramic Tiles, Wood Plys & Interior Design Union Workers v Kelco Aluminium Works Limited (Cause E104 of 2022) [2024] KEELRC 365 (KLR)", Case Analysis (2024). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/365/eng@2024-02-28

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