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IndustrialDismissedCause 120 of 2005· [2006] KEIC 4 (KLR)

Kenya Hotels & Allied Workers’ Union v Southern Palms Beach Resort; Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers (Interested Party) (Cause 120 of 2005) (Employment and Labour) [2006] KEIC 4 (KLR)

Industrial Court at Nairobi (Employment and Labour)
10 August 2006
CCCP ChemuttutOWOA WafulaJKJM Kilonzo
609 words in judgment
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The bottom line

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Kenya's Industrial Court ordered a secret ballot among hotel workers to settle which union represents them, rejecting the employer's challenge.

What this practically means

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Executive summary

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This is an order of the Industrial Court at Nairobi in Cause 120 of 2005, an employment dispute between the Kenya Hotels & Allied Workers' Union (first Union) and Southern Palms Beach Resort (the Resort), with the Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers (second Union) as interested party. The underlying issue in dispute was the Resort's refusal to sign a Recognition Agreement. By an amended or modified order made on 13th July 2006, the Court had directed Mr. Benson Okwayo of the EPD to conduct a secret ballot among the unionisable employees (excluding seasonal and casual workers), in the presence of both parties' representatives, the Registrar of the Court or his representative, and the Provincial Labour Officer or his representative, to determine which of the two unions the majority wished to belong to. On 7th August 2006 the Resort, through Mr. Salim wa Mwawaza, Executive Officer of the F.K.E., filed an application for interpretation of the amended order under Section 16(5) of the Trade Disputes Act, Cap. 234, contending that the order conflicted with Sections 5(2), 16(6) and 17(1) and (2) of the Act and with Section 80 of the Constitution, and would adversely affect the Resort's business in finance and publicity. The Court rejected these contentions, holding that the amended order fostered industrial peace and would end the unions' rivalry for recognition. It summarily dismissed the application as untenable and devoid of merit and directed that the secret ballot proceed forthwith. No costs order was made.

Key legal issues

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Whether the amended order of 13th July 2006 should be interpreted or set aside for conflict with statute and the Constitution

Holding

The application for interpretation was rejected summarily; the amended order was lawful and in furtherance of industrial peace

Reasoning

The Court, on a careful reading of the memorandum in support of the Resort's application under Section 16(5) of the Trade Disputes Act and its annexures, found the three grounds raised - conflict with Sections 5(2), 16(6) and 17(1) and (2) of the Act, violation of Section 80 of the Constitution, and adverse business effects - did not establish any contravention. It instead held that the secret ballot would foster industrial peace and end the unions' rivalry for recognition.

p. 2

Legal principles established

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  • An amended order directing a secret ballot among unionisable employees to determine union membership does not contravene the Trade Disputes Act or Section 80 of the Constitution, and serves industrial peace

Court orders

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  1. 1.The application for interpretation of the amended order is rejected summarily as untenable and devoid of merit
  2. 2.Mr. Benson Okwayo is directed to proceed with the secret ballot exercise forthwith
Jurisdiction invoked
Section 16(5) of the Trade Disputes Act, Cap. 234, Laws of Kenya

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 Hotels & Allied Workers’ Union v Southern Palms Beach Resort; Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers (Interested Party) (Cause 120 of 2005)  (Employment and Labour) [2006] KEIC 4 (KLR)", Case Analysis (2006). Cause 120 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2006/4/eng@2006-08-10

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