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ELRCDismissedELD ELRC CAUSE NO. E033 OF 2024

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)

Employment and Labour Relations Court
11 December 2025
2,919 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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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

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Executive summary

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The Claimant union, registered under the Labour Relations Act to represent employees in the commercial and food sector, sued two limited liability companies in Eldoret: the 1st Respondent, which operates a hardware shop, and the 2nd Respondent, a labour supplier deploying workers at the hardware premises. The Claimant alleged it recruited 27 of 36 employees at the premises (about 78%), served check-off forms and a model recognition agreement, but the Respondents refused recognition and victimized union members. It sought an order of recognition, deduction and remittance of union dues, and collective bargaining within 60 days. The 1st Respondent denied any employer-employee relationship with the recruited employees, claiming misjoinder; the 2nd Respondent denied the majority, asserted 67 employees on 3-month contracts, questioned signatures, and attributed departures to expired contracts, misconduct and defamatory social media posts. The suit was disposed of by written submissions. The court framed four issues. It held the 1st Respondent was not the employer of the 2nd Respondent's employees and no cause of action lay against it. It found the Claimant was the right union for the 1st Respondent's retail business. On the majority question, the court held that recognition is at enterprise level, so the relevant pool comprised employees deployed at the 1st Respondent's premises, not the supplier's total workforce; the material date was that on which recognition was sought; and casual and short-term contract employees are unionisable. However, the Claimant failed to prove a simple majority on a balance of probability. The suit was dismissed with each party bearing its own costs.

Questions the Court framed

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

  1. 1.Whether the Claimant has any cause of action against the 1st Respondent
  2. 2.Whether the Claimant is the right union to recruit the employees of the 2nd Respondent
  3. 3.Whether the Claimant has achieved a simple majority among the employees of the 2nd Respondent
  4. 4.Whether the Claimant is entitled to the prayers sought in the Memorandum of Claim

Key legal issues

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01

Whether the 1st Respondent (the host business) is the employer of the labour supplier's employees

Holding

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).

Reasoning

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.

02

Whether the Claimant is the right union for the sector

Holding

Yes, as to the 1st Respondent's retail business, since its constitution covers employees in shops, retail and wholesale outlets and supply companies.

Reasoning

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.

p. 13
03

Whether the Claimant achieved a simple majority for recognition under section 54 of the Labour Relations Act

Holding

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.

Reasoning

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.

p. 17

Legal principles established

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  • 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

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  1. 1.The Claimant's suit is dismissed
  2. 2.Each party shall bear its own costs

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 Article 162(2) of the Constitution and the Labour Relations Act (sections 48 and 54)

Relief refused

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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

p. 16

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

p. 13

Order compelling the parties to engage in Collective Bargaining within 60 days

Not granted as the recognition claim failed

p. 17

Costs

Each party shall bear its costs.

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.

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.
Employer-employee relationship with labour suppliers
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.
p. 14Enterprise-level recognition and labour suppliers
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
p. 15Material date for assessing simple majority
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.
p. 15Unionisability of casual and short-term contract 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.
p. 16Purpose and limits of labour outsourcing
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
p. 16Burden of proof
I find no merit in the Claimant's case with the result that the same is dismissed. Each party shall bear its costs.
p. 17Disposition and costs

Issues in the judgment

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minor

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

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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 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.