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Case Brief · caselaw.co.ke
IndustrialPartially AllowedCause 8 of 2003

Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers v Kenya Association of Hotelkeepers & Catererers; Kenya Hotels & Allied Workers’ Union (Interested Party) (Cause 8 of 2003) (Employment and Labour) [2003] KEIC 32 (KLR)

Industrial Court of Kenya (Employment and Labour)
27 November 2003
2,323 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A valid recognition agreement beats majority claims: Kenya's Industrial Court ordered hotel employers to negotiate with the union holding their 1969 recognition agreement.

What this practically means

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Executive summary

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This is an award of the Industrial Court at Nairobi in a trade dispute referred to it by the Minister for Labour on 18th March 2003 under Section 8 of the Trade Disputes Act, Cap. 234. The dispute arose from the refusal of the Kenya Association of Hotelkeepers & Catererers to negotiate a collective bargaining agreement with the first Union, which had held a valid recognition agreement with the Association since 1969. The second Union (the Interested Party), registered in 1999 specifically for the hotel industry, claimed to have recruited a simple majority of the unionisable employees and sought recognition. The Association submitted that the first Union had lost its representative capacity, that the union rivalry made negotiations hazardous, and asked the Court to designate one union with exclusive negotiating rights, if necessary after a Ministry of Labour survey. The second Union supported the Association and asked that the dispute be rejected and that it be recognised instead. The court framed the single question as which of the two unions was entitled to negotiate with the Association. Applying the principle of industrial trade unionism embodied in the Act and the Industrial Relations Charter, and noting the first Union's valid recognition agreement and history of concluded collective agreements, the court held that the first Union was for the time being the appropriate bargaining agent, while leaving the second Union free to establish its capacity on its own merits if it secured a simple majority. The court ordered the Association to negotiate forthwith with the first Union new terms and conditions of employment for its members' unionisable employees. No costs order was made. The two Members who sat with the Judge did not furnish opinions or advice.

Questions the Court framed

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

  1. 1.Which one of the two unions is entitled to negotiate with the Association, on behalf of its members' unionisable employees

Key legal issues

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01

Which of the two rival unions is entitled to negotiate a collective bargaining agreement with the Association

Holding

The first Union, holder of the valid 1969 recognition agreement with the Association, is the appropriate union to negotiate new terms and conditions of employment

Reasoning

The first Union had a valid recognition agreement dating to 1969 and a history of concluded collective agreements with the Association. The second Union, though allegedly recruiting a simple majority, had no recognition agreement and its recognition disputes were still pending before the Minister. The Act and the Industrial Relations Charter enjoin strict observance of industrial trade unionism - one union, one industry - and the Charter guarantees an employer the right to deal with only one union. Majority membership alone is not enough in such a dispute; the second Union's capacity can be determined on its own merits if it later secures a simple majority.

p. 4
02

Purpose of the Trade Disputes Act and the exclusive jurisdiction of the Industrial Court

Holding

The Act is a special law designed to promote harmonious industrial relations, merging individual employees' rights into trade unions as collective bargaining agents, with the Industrial Court having exclusive jurisdiction over such disputes

Reasoning

The court analysed the legislative intent behind the Trade Disputes Act, Cap. 234, holding that the Legislature merged the identity of individual employees into trade unions as collective bargaining agents responsible for collective bargaining, representation in proceedings and declaring strikes. The Act regulates employer-employee relations through unions and the Industrial Court, established under Section 14, adjudicates such disputes with exclusive jurisdiction. The paramount object of the Act is promoting harmonious relationships and industrial peace between capital and labour.

p. 4

Legal principles established

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  • Where two unions rival for recognition, a valid existing recognition agreement prevails over an unproven claim of simple majority membership, in accordance with industrial trade unionism
  • The Industrial Court established under Section 14 of the Trade Disputes Act has exclusive jurisdiction over trade disputes
  • If and when the second Union secures a simple majority of the unionisable employees, its representative capacity will be decided on its own circumstances and merits

Court orders

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  1. 1.The Association should negotiate forthwith with the first Union (Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers) new terms and conditions of employment or service for the unionisable employees of its members

The bench

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

Wrote the judgment

Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234 (reference by the Minister for Labour); Industrial Court established under Section 14 of the Act

Relief refused

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Second Union's prayer that the dispute be rejected and that the Association recognise and negotiate with it

The first Union holds a valid recognition agreement and the Act and Industrial Relations Charter enjoin observance of industrial trade unionism; the second Union's alleged majority membership alone is insufficient while it has no recognition agreement

p. 5

Association's request that a survey be ordered and an order issued designating which union should negotiate after a Ministry of Labour survey

The Court was persuaded that the first Union, with its valid recognition agreement, is the appropriate union for the time being

p. 4

Costs

No costs order made in the award

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.

In the result, I award and order that the Association should negotiate forthwith with the first Union, i.e. the Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers, new terms and conditions of employment or service for the unionisable employees of its members.
p. 5Final orders - direction to negotiate with the first Union
I am persuaded in the circumstances that the first Union, i.e. the Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers, is for the time being the right and appropriate union to enter into negotiation with the Association for purposes of collective bargaining agreement.
p. 4Determination of the appropriate bargaining agent
The Industrial Relations Charter envisages one and only one trade union, or a collective bargaining agent, in an establishment or a group of establishments, and guarantees a right to an employer or a group of employers, as in this case, that he or it shall deal with only one union, or a collective bargaining agent.
p. 4One union, one industry principle
the Industrial Court was established under Section 14 of the said Act to adjudicate and determine disputes relating to the rights of the employers and the employees and its jurisdiction is exclusive.
p. 4Exclusive jurisdiction of the Industrial Court
The two Members of the Court who sat with me in this case were unable to furnish me with their opinion or advice.
p. 5Bench composition note

Issues in the judgment

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minor

The Members of the Court did not furnish their opinion or advice, so the award is that of the Judge alone despite the three-member coram

minor

Member surnames spelled inconsistently between coram line (WARRAKAH, JAHAZI) and possible variants

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 Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers v Kenya Association of Hotelkeepers & Catererers; Kenya Hotels & Allied Workers’ Union (Interested Party) (Cause 8 of 2003)  (Employment and Labour) [2003] KEIC 32 (KLR)", Case Analysis (2003). Cause 8 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2003/32/eng@2003-11-27

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