Kenya Union of Commercial and Food Allied Workers v Heet Supplies Hardware Limited Pemage EA Services Limited (Employment and Labour Relations Cause E033 of 2024) [2025] KEELRC 3775 (KLR)
The bottom line
#A Kenyan court dismissed a union's bid to force a hardware and labour supplier to recognise it because the union could not prove most workers had joined.
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 Claimant has any cause of action against the 1st Respondent
- 2.Whether the Claimant is the right union to recruit the employees of the 2nd Respondent
- 3.Whether the Claimant has achieved a simple majority among the employees of the 2nd Respondent
- 4.Whether the Claimant is entitled to the prayers sought in the Memorandum of Claim
Key legal issues
#Whether the 1st Respondent (the host business) is the employer of the labour supplier's employees
No. Working at the premises of the 1st Respondent does not make it the employer; the employer-employee relationship is with the labour supplier (2nd Respondent).
The court held that the mere fact that the 2nd Respondent's employees work at the 1st Respondent's premises does not create an employment relationship with the 1st Respondent. Since the 1st Respondent has no employees among those recruited, no cause of action lies against it and the claim against it fails.
Whether the Claimant is the right union for the sector
Yes, as to the 1st Respondent's retail business, since its constitution covers employees in shops, retail and wholesale outlets and supply companies.
The court found the Claimant union's constitution authorizes it to represent employees in supermarkets, shops, retail and wholesale outlets, and distribution and supply companies, making it the proper union for employees of a hardware retail business. The issue of simple majority nonetheless defeated the claim.
Whether the Claimant achieved a simple majority for recognition under section 54 of the Labour Relations Act
No. The Claimant failed to prove a simple majority of the 2nd Respondent's employees deployed at the 1st Respondent's premises at the time recognition was sought.
The 2nd Respondent claimed 67 employees but did not supply a list or show they all worked at the 1st Respondent's premises. However, the Claimant also failed to analyze the list to prove a simple majority. Applying sections 107, 108 and 109 of the Evidence Act, the burden lay on the Claimant, which did not discharge it on a balance of probability.
Legal principles established
#- Recognition is determined at enterprise level; where an employer is a labour supplier, the union must recruit a simple majority of the employees deployed at the specific enterprise premises, not the supplier's total workforce
- The material time for assessing a simple majority is the date the union seeks recognition, as employment numbers are fluid
- Casual employees and employees on short-term (3-month) contracts are not excluded from union membership or collective bargaining
- The burden of proving a simple majority rests on the union seeking recognition
Court orders
#- 1.The Claimant's suit is dismissed
- 2.Each party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution and the Labour Relations Act (sections 48 and 54)
Relief refused
#Order compelling the Respondents to recognize the Claimant Union
The Claimant failed to prove a simple majority of the 2nd Respondent's employees at the premises of the 1st Respondent at the time it sought recognition
Order for deduction and remittance of union dues
Fell with the failure of the recognition claim, the employer of the recruited employees being the 2nd Respondent and not the 1st Respondent
Order compelling the parties to engage in Collective Bargaining within 60 days
Not granted as the recognition claim failed
Costs
Each party shall bear its costs.
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 fact that the employees of the 2nd Respondent work in the premises of the 1st Respondent does not make the 1st Respondent the employer of such employees.
For purposes of this suit the employees that the Claimant ought to recruit a simple majority from are those working at the 1st Respondent's premises and not its total workforce, some of whom work in different enterprises or sectors.
the material time is the date when the Claimant seeks recognition. The reason for this is that employment numbers are fluid and change regularly based on new employees joining employment
There is no law that excludes casual employees from joining union membership or which stops a union from engaging in collective bargaining to protect the rights of casual employees.
Outsourcing is not intended to subject employees to unfair labour practices by engaging casual employees in jobs that are permanent in order to deny them fair terms of service.
the burden of proof lies with the person who desires the court to give judgment in its favour as to any legal right or liability dependent on the existence of facts which he asserts
I find no merit in the Claimant's case with the result that the same is dismissed. Each party shall bear its costs.
Issues in the judgment
#The 2nd Respondent's pleadings discuss alleged defamatory publications and misconduct involving the '1st respondent's' business, though the response was filed by the 2nd Respondent, suggesting possible conflation of the two Respondents in the pleadings
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial and Food Allied Workers v Heet Supplies Hardware Limited Pemage EA Services Limited (Employment and Labour Relations Cause E033 of 2024) [2025] KEELRC 3775 (KLR)", Case Analysis (2025). ELD ELRC CAUSE NO. E033 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3775/eng@2025-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.