Union of National Research & Allied Institute Staff of Kenya v National Museums of Kenya; Kenya Union of Commercial, Food and Allied Workers (Interested Party) (Cause E641 of 2022) [2024] KEELRC 1311 (KLR)
The bottom line
#Kenya's Employment and Labour Relations Court dismissed a trade dispute because the union skipped mandatory conciliation and re-litigated issues already decided.
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 trade dispute was prematurely lodged for want of a certificate of unresolved dispute or certificate of conciliation under section 69(a) of the Labour Relations Act, 2007
- 2.Whether the issues raised are res judicata having been decided in Cause 1366 of 2011, 1126 of 2012 and Cause 30(N) of 2019 between the same parties
- 3.Whether a dispute over a subsisting recognition agreement and CBA must be channelled as a demarcation dispute under sections 54(5), (6) & (7) of the Labour Relations Act, 2007
Key legal issues
#Prematurity of the trade dispute under section 69(a) of the Labour Relations Act
The objection on prematurity succeeded as part of the court's overall persuasion that the claimant could not maintain the suit, culminating in dismissal
The Interested Party argued that no certificate of unresolved dispute or certificate of conciliation was issued or exhibited as required under section 69(a) of the Labour Relations Act, 2007, whose terms it said were mandatory. The court, in reviewing the objection and submissions, was persuaded to uphold the preliminary objection and dismiss the suit.
Res judicata
The issues in the suit (deduction of union dues and recognition agreement) were already litigated and decided in prior causes between the same parties
The court found that the claimant's issues had been litigated severally in Cause 1366 of 2011, Cause 1126 of 2012 and Cause 30(N) of 2019 between the same parties, and treated the fresh filing as offending the settled principles of res judicata, supporting dismissal of the suit.
Recognition agreement and CBA; exclusive bargaining agent
The respondent already had a recognition agreement with the Interested Party and a CBA; any dispute over the continued relationship must follow the demarcation procedure under sections 54(5), (6) & (7)
The court accepted that a valid recognition agreement and CBA existed and that the respondent could not engage with the claimant without first approaching the National Labour Board under section 54(5) of the Labour Relations Act, 2007. It endorsed the simple-majority principle as promoting industrial harmony, quoting Radido J with approval.
Legal principles established
#- A preliminary objection is confined to pure questions of law and cannot be used to determine factual or evidentiary matters such as the existence of a recognition agreement
- The statutory principle of simple majority in labour relations facilitates orderly collective bargaining, prevents proliferation of trade unions in a workplace and enhances industrial peace
Court orders
#- 1.The preliminary objection by the Interested Party is upheld
- 2.The suit is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Jurisdiction over trade disputes under the Labour Relations Act, 2007; suit lodged as trade dispute ML/LD/54/9/2021
Relief refused
#The claimant's suit (claim concerning union dues deduction and recognition agreement)
Dismissed on the preliminary objection: the dispute was premature for want of a conciliation certificate, the issues were res judicata, and the claimant's remedy lay in a demarcation dispute under the Labour Relations Act
Costs
The suit is dismissed with costs (costs awarded against the claimant)
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 question whether there is a Recognition Agreement or not is one of fact and not law. The Court would have to call and assess evidence availed before it.
to that extent the Court upholds the preliminary objection and hereby dismisses this suit with costs.
It is so ordered
Allowing multiple Unions to be recognised by an employer would be a recipe for chaos.
Issues in the judgment
#The court records that 'the respondent already has a recognition agreement with the respondent', an apparent typographical confusion between the respondent and the Interested Party as parties to the recognition agreement
The preliminary objection head on demarcation disputes cites 'section 54(6) & 7' while the objector elsewhere refers to section 54(5); the section references are inconsistent within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Union of National Research & Allied Institute Staff of Kenya v National Museums of Kenya; Kenya Union of Commercial, Food and Allied Workers (Interested Party) (Cause E641 of 2022) [2024] KEELRC 1311 (KLR)", Case Analysis (2024). Trade dispute ML/LD/54/9/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1311/eng@2024-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.