Kenafric Industries Limited v Bakery Confectionary Food Manufacturing and Allied Workers Union (Cause 248 of 2014) (Employment and Labour) [2014] KEIC 10 (KLR)
The bottom line
#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 Collective Bargaining Agreement should be registered as presented or deferred to allow renegotiation of the 16 contested clauses
- 2.Whether the Employer's late objection and attempt to renegotiate the signed CBA was proper in law
- 3.Whether the delay of approximately two years in presenting the CBA for registration was contrary to statute
Key legal issues
#When a collective bargaining agreement becomes legally enforceable
The CBA becomes binding and enforceable only upon registration by the Industrial Court, effective from the date agreed by the parties under Section 59(5) of the Labour Relations Act
The Court compared the definitions of 'collective agreement' in the Labour Relations Act and the Employment Act and noted the Rules placed the onus of registration on the Minister. Holding the substantive law on collective bargaining agreements to be Section 60 of the Labour Relations Act, the Court found that enforceability attaches only on registration; prior to that the CBA is merely an intention of the parties.
Conflict between Rule 35 of the Industrial Court (Procedure) Rules 2010 and Section 60 of the Labour Relations Act 2007
Rule 35 is contra statute and inconsistent with Parliament's intention in Section 60; it was referred to the Rules Committee for amendment
The Court held that delegated legislation cannot vary the primary statute. Whereas Section 60 requires every collective agreement to be submitted to the Industrial Court for registration within fourteen days of conclusion, Rule 35 places the lodging obligation on the Minister. The Court found the Rules attempted to rewrite the law and referred the matter to the Rules Committee.
Effect of delayed presentation of a concluded CBA for registration
The two-year delay in presenting the 2012 CBA for registration breached the statutory fourteen-day requirement and justified deferring registration to allow renegotiation
The CBA covering 2015-2016 was signed in December 2012 but only presented for registration in November 2014. The Court observed that the delay allowed the Employer to have a change of mind on previously agreed issues, and that the best practice is to register a CBA shortly after conclusion. Registration was deferred for 45 days with the existing CBA continuing in force.
Legal principles established
#- A collective bargaining agreement attains legal enforceability only upon registration by the Industrial Court; before registration it is a mere expression of the parties' intention
- Rule 35 of the Industrial Court (Procedure) Rules 2010 conflicts with Section 60 of the Labour Relations Act 2007 and cannot override the substantive statute
- A collective agreement must be submitted for registration within fourteen days of its conclusion as required by statute
Court orders
#- 1.Registration of the CBA deferred for 45 days to allow the parties to renegotiate the CBA and present it for registration
- 2.The existing CBA to hold and continue to have full force of law pending resolution of the dispute within the 45 days
- 3.Each party to bear their own costs
- 4.The Ruling referred to the Rules Committee of the Industrial Court to prepare a suitable amendment to Rule 35 of the Industrial Court (Procedure) Rules 2010 to reflect the intention of Parliament
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Statutory jurisdiction to register collective agreements under Section 60 of the Labour Relations Act 2007 and the Industrial Court (Procedure) Rules 2010
Relief refused
#Immediate registration of the Collective Agreement as sought by the Union
The Court deferred registration for 45 days due to the statutory breach of delayed presentation and the Employer's objection to 16 clauses
Costs
Each party will bear their own 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.
I am of the firm view that the collective bargaining agreement attains legal enforceability upon registration by this Court. Prior to that it is an intention of parties and can be referred to but can only attain the status of legally binding and enforceable upon registration by this Court.
Rule 35 is an attempt by a person or persons with delegated authority to rewrite the law. I find that this Section is contra statute and I refer this Ruling to the Rules Committee of the Industrial Court which is reviewing the Rules of this Court to enable them prepare a suitable amendment to the Rules to reflect the intention of Parliament.
In the premises I will defer the registration of the CBA for 45 days to allow parties renegotiate the CBA and present the CBA for registration in short shrift. The law provides that there will be no vacuum and the existing CBA will hold for now and shall continue to have the full force of the law pending the resolution of the dispute within 45 days.
In view of the deferment I have given above, each party will inevitably bear their own costs.
Issues in the judgment
#The judgment uses different role labels for the parties: the Employer is described as 'Applicant' in the opening paragraph while the Employer in fact objected to registration and the Union sought it
The Union's submissions attribute the estoppel argument to Section 59(5) of the Labour Relations Act, but Section 59(5) as quoted in the judgment deals with enforceability upon registration rather than estoppel
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenafric Industries Limited v Bakery Confectionary Food Manufacturing and Allied Workers Union (Cause 248 of 2014) (Employment and Labour) [2014] KEIC 10 (KLR)", Case Analysis (2014). CBA No. CA 248 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2014/10/eng@2014-12-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.