The ruling herein relates to an application dated 27 March 2025 filed by the respondent, M/S Brollo Kenya Limited. The respondent is seeking that the pending judgment be delayed to allow the National Labour Board to complete the balloting exercise.
The application is supported by Ketan Doshi, Managing Director of the respondent, who asserts that the claimant filed this claim seeking orders to compel the parties to enter into a Collective Bargaining Agreement (CBA). However, the respondent disputes the claimant’s ability to represent workers in the negotiations.
Doshi states that the National Labour Board considered the respondents' application dated 16 December 2024 and, on 19 February 2023, directed that it conduct a ballot of the workers before making a decision. This process remains ongoing. Overall, the court should not deliver the pending judgment scheduled for 24 April 2025, allowing the ballot to proceed and the National Labour Board to decide.
If the application is approved, the claimant will not be prejudiced. However, the respondent will face financial and operational difficulties if the judgment is issued before the National Labour Board (NLB) makes a determination.
In reply, the claimant submitted the Reply Affidavit of Wycliffe Amakombo Nyamwata, stating that the parties have taken hearing directions in this matter with the respondent’s full knowledge that the revocation of the Recognition Agreement was pending determination. The respondent has not claimed any loss that would occur if the NLB fails to decide.
The respondent's application breaches Rule 49 of the Employment and Labour Relations Court (Procedure) Rules, and no written submissions have been provided. The purpose of a Recognition Agreement, under which the respondent has acknowledged it remains valid while pending before the NLB, is legitimate and must be followed according to its terms. The directions for balloting cannot override the existing Recognition Agreement.
Where there is a CBA, the respondent shall not suffer any damage or prejudice. The CBA is meant to compensate employees for their contribution to the business.
Determination
Pending the hearing of the instant application dated 27 March 2025, the claimant filed a Notice to Withdraw the Suit on 30 April 2025.
The matter was mentioned on 5 June 2025, yet the claimant did not address this Notice of Withdrawal of the Suit.
A Notice of Withdrawal of Suit effectively ends the case. There is no further matter for the respondent to address. As the rights-holder of the suit, the claimant also has the authority to withdraw it. The case was awaiting judgment when the respondent filed its application and the claimant’s Notice of Withdrawal. It would be sufficient at this stage to close the matter and recognise the Notice of Withdrawal dated 30 April 2025.
However, given the pending application by the respondent seeking to stay the delivery of judgment herein to allow the NLB to complete the balloting process, as a court of record, it is imperative to address. The mandate of the NLB under the Labour Relations Act (LRA) includes its mandate under section 54(5) that,
(5) An employer, a group of employers or an employers’ association may apply to the Board to terminate or revoke a recognition agreement.
The revocation process of a Recognition Agreement under Section 54 of the LRA should follow the aggrieved party reporting a dispute to the Minister and completing the conciliation process. Once the matter is filed in court, these procedures must be finished. Attempting to invoke the NLB mandate midway through the judicial process, especially while a case is awaiting judgment, constitutes both an abuse of court process and an invalid procedure.
The NLB is subordinate to the court. Its procedures are not similar to the judicial process. Stalling an ongoing matter in court should be based on sound judicial principles, which are lacking in the instant case.
Once a trade union gains recognition by the employer, the sanctity of the Recognition Agreement should be upheld unless there is a justified, lawful, and valid cause. In the cases of Kenya Private Universities Workers Union v Kenya Highland University (Cause 103 of 2016) [2023] KEELRC and Amalgamated Union of Kenya Metal Workers v Jaykay Mechanical Engineering Limited [2019] eKLR, the courts emphasised that;
It does not make sense to execute Recognition today, and tomorrow, an Employer requires the Union to show again that it has a simple majority of Unionisable Employees, in order for collective bargaining to commence. The sanctity of the Recognition Agreement must be upheld. Although it is said that the recruitment of employees by the union is a continuous process, the law does not require the union to show that it has a simple majority at every turn in the collective bargaining cycle. The Court takes a grim view of Employers who conclude Recognition Agreements and fail to register even a single CBA. What is the purpose of recognition? If the Respondent wants to opt out, the law requires the Respondent to do so through the National Labour Board, or through the mechanisms provided for in the Recognition Agreement itself, or through an order of the Court.
In the case of Kenya Airline Pilots Association v Kenya Airways Limited [2016]eKLR, the court held that:
The sanctity of a CBA [and a Recognition Agreement] cannot be overemphasised here. This is a binding document to the parties as it is a contract as it were. It creates rights and responsibilities and parties to it are bound by its terms. The Labour Relations Act recognises a CBA in section 59(5) as an enforceable agreement. Like an employment contract, a CBA and its provisions is to be understood in its own meaning and the court will go out to uphold its terms unless a party alleges any other meaning to such terms which requires proof.
A Recognition Agreement thus forms a fundamental foundation for the labour relationship. It creates the basis upon which labour relations can be negotiated in a CBA. The recognition agreement's protection is imperative.
In this regard, save for the Notice to Withdraw Suit dated 30 April 2025 filed by the claimant, the respondent's application dated 27 March 2025 is without merit and is hereby dismissed.
The claim is marked as withdrawn. Each party shall bear its costs.
Delivered in open court at Mombasa, this 24th day of July 2025.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Japhet
……………………………………………… and ………………….………………………