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ELRCDismissedPetition (amended) dated 3rd October 2022, Employment and Labour Relations Court· [2024] KEELRC 2864 (KLR)

Kenya Independent Commissions Workers Union v Independent Electoral and Boundaries Commission (Petition 181 of 2020) [2024] KEELRC 2864 (KLR)

Employment and Labour Relations Court
18 November 2024
JKJemimah Keli
2,995 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Employment and Labour Relations Court ruled that employers are not legally required to give unions workplace access until a recognition agreement exists.

What this practically means

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Executive summary

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The Petitioner, a registered trade union, petitioned the Court alleging that the Respondent, the Public Service Commission, violated Articles 24, 27, 36 and 41 of the Constitution by denying it reasonable access to the Respondent's employees for recruitment, and sought declarations, injunctive orders against victimization, and an order for deduction and remittance of union dues pursuant to Legal Notice No. 91 of 2017. The Respondent opposed the petition, contending it was incompetent, that no Minister's order directed it to make deductions for its employees, that no recognition agreement existed entitling the union to access under section 56 of the Labour Relations Act, and that any trade dispute should first have gone to conciliation. The Court framed two issues: whether the Respondent violated fair labour practices and the right to unionize by denying access, and whether the reliefs were merited. The Court held that access for recruitment must be addressed in a recognition agreement under section 56 of the Labour Relations Act, and, following Kenya Private Universities Workers Union v United States International University and v Aga Khan University, that there is no legal obligation on an employer to grant a union without a recognition agreement access to its premises; such access is at the employer's unfettered discretion. The Court further found no evidence of any employee's membership (no Form S or signed check-off forms), rendering the victimization claims baseless and the check-off prayer premature. The amended petition was dismissed for lack of merit with no order as to costs, the Court holding there was no cause of action.

Key legal issues

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01

Whether denial of access to employees for recruitment violated Articles 36 and 41 of the Constitution

Holding

No violation; access for recruitment must be provided under a recognition agreement under section 56 of the Labour Relations Act, and before such agreement granting access is at the employer's discretion

Reasoning

The court relied on section 56(3) of the Labour Relations Act, which confines disputes on access to unions with recognition agreements, and followed the Mbaru J decision in Kenya Private Universities Workers Union v United States International University and the court's own holding in the Aga Khan University case. The union could recruit unionisable employees outside the employer's premises.

p. 6
02

Whether reliefs on victimization and check-off deductions were merited

Holding

Not merited; no evidence of any employee joining the union (no Form S or signed check-off forms), so the cause of action failed

Reasoning

The court found the petition put the cart before the horse: no annexed Form S, no employee testimony, and no signed check-off forms forwarded to the respondent. Without proof of recruitment of employees as members, victimization claims could not arise and the check-off prayer was premature.

p. 7

Legal principles established

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  • A trade union may only invoke the court's jurisdiction on access to an employer's premises to recruit where it has a recognition agreement; before that, access is at the employer's discretion
  • Victimization and violation of the right to join a union cannot arise absent proof of membership

Court orders

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  1. 1.The Petition as amended on 3rd October 2022 is dismissed for lack of merit
  2. 2.No order as to costs
Jurisdiction invoked
Constitutional petition under Articles 24, 27, 36 and 41 of the Constitution of Kenya, 2010

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 Independent Commissions Workers Union v Independent Electoral and Boundaries Commission (Petition 181 of 2020) [2024] KEELRC 2864 (KLR)", Case Analysis (2024). Petition (amended) dated 3rd October 2022, Employment and Labour Relations Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2864/eng@2024-11-18

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