1. By a notice of preliminary objection filed on 15th November, 2024 the Respondent averred that the Court lacked jurisdiction to hear and determine this matter on the ground that the claimant has no locus standi to deal on the subject for its purported members for lack of Recognition Agreement with the respondent contrary to section 54 of the Labour Relations Act.
2. That section 45(3) of the Employment Act provides that an employee who has been continuously employed by his employer for a period of not less than thirteen months immediately before the date of termination shall have right to complain that he has been unfairly terminated. One Fridah Mbone among whom the claimant has brought the suit for unlawful termination was employed for a period less than thirteen months and not for a period of more than thirteen months as provided under section 45(3) of the Employment Act. The respondent therefore did not have a right to complain of unfair termination.
3. In support of the objection, Counsel for the respondent submitted inter alia that the claimant had not provided the court with any written recognition agreement as provided under section 54 of the Labour Relations Act. That the Recognition Agreement is entered into for the purpose of collective bargaining and records the terms upon which the employer recognizes unions. Further, section 54 of the Labour Relations Act envisaged for the agreement to be written for it to be binding on the parties. According to counsel therefore a suit cannot be brought before this Court by a party who lacks Recognition Agreement and is seeking recognition through unlawful means.
4. According to Counsel, section 54(1) of LRA requires an employer to recognize a union that has attained a simple majority of all unionisable employees. To determine the unionisable employees the Union’s constitution must be availed to the employer. The union must be willing to share its constitution with the employer as a show of intention for recognition. The claimant herein has not shown that it provided the respondent with any constitution or agreement that the respondent refused to sign.
5. The respondent further submitted that the claimant claimed to have recruited the simple majority of employees of the respondent but failed to produce before the Court any documentation to support their allegation. In this respect counsel relied on the cases of Transport Workers Union v. Etihad Airways [2019] KEELRC 2294 (KLR), Abyssinia Iron & Steel Ltd vs. Kenya Engineering Workers Union [2016] KLR and others. Counsel further submitted that the claimant had failed to produce the check off forms duly signed by employees of the respondent.
6. The claimant has therefore failed to prove on a balance of probabilities that it had recruited a simple majority of unionisable employees of the respondent as there is no evidence of recognition agreement between the parties. Counsel further submitted that in accordance with section 54(6) and 54(7), the parties ought to have resolved the issue of recognition first before instituting the suit herein. Parties ought to have undergone conciliation prior to the commencement of this suit. In that regard, counsel relied on the case Aviation & Allied Workers Union v. Air Kenya Express Limited & Anor.
7. Concerning one of the grievants namely Fridah Mbone, counsel submitted that she had not been employed for more than thirteen month’s hence she had no right to complain about unfair termination. Counsel relied on section 45(3) of the Employment Act.
8. The claimant on its part submitted that it had the requisite locus standi to commence the suit. In this regard, the claimant relied on article 22(d) of the Constitution which permits an association acting in the interest of one or more of its members to file a suit. Further section 2 of the Labour Relations Act defines an authorized representative to mean the secretary of a trade union. According to the claimant, under section 73(3) a trade dispute may only be referred to the Industrial Court by authorized representative of an employer, group of employers’ organization or a trade union.
DETERMINATION
9. Membership to a trade union is a constitutional right under article 41(2)(c) of the constitution. Section 54 of the Labour Relations Act however provides that an employer shall recognize a trade union for purposes of collective bargaining if the trade union represents a simple majority of unionisable employees employed by the employer. The foregoing implies that a person in employment in particular industry is free to join and participate in the activities of a union of choice in the sector. The union on the other hand by dint of section 73 of the Labour Relations Act can represent its members before the Court. Representation before the Court is regardless of whether the Union has a recognition agreement with the employer against whom the suit has been commenced or not. Recognition agreement is a prerequisite only in a case where the union concerned intends to engage in collective bargaining with the employer. The objection is therefore found without merit and is hereby dismissed with costs. The matter shall proceed for hearing on merit.
10. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division
2. That section 45(3) of the Employment Act provides that an employee who has been continuously employed by his employer for a period of not less than thirteen months immediately before the date of termination shall have right to complain that he has been unfairly terminated. One Fridah Mbone among whom the claimant has brought the suit for unlawful termination was employed for a period less than thirteen months and not for a period of more than thirteen months as provided under section 45(3) of the Employment Act. The respondent therefore did not have a right to complain of unfair termination.
3. In support of the objection, Counsel for the respondent submitted inter alia that the claimant had not provided the court with any written recognition agreement as provided under section 54 of the Labour Relations Act. That the Recognition Agreement is entered into for the purpose of collective bargaining and records the terms upon which the employer recognizes unions. Further, section 54 of the Labour Relations Act envisaged for the agreement to be written for it to be binding on the parties. According to counsel therefore a suit cannot be brought before this Court by a party who lacks Recognition Agreement and is seeking recognition through unlawful means.
4. According to Counsel, section 54(1) of LRA requires an employer to recognize a union that has attained a simple majority of all unionisable employees. To determine the unionisable employees the Union’s constitution must be availed to the employer. The union must be willing to share its constitution with the employer as a show of intention for recognition. The claimant herein has not shown that it provided the respondent with any constitution or agreement that the respondent refused to sign.
5. The respondent further submitted that the claimant claimed to have recruited the simple majority of employees of the respondent but failed to produce before the Court any documentation to support their allegation. In this respect counsel relied on the cases of Transport Workers Union v. Etihad Airways [2019] KEELRC 2294 (KLR), Abyssinia Iron & Steel Ltd vs. Kenya Engineering Workers Union [2016] KLR and others. Counsel further submitted that the claimant had failed to produce the check off forms duly signed by employees of the respondent.
6. The claimant has therefore failed to prove on a balance of probabilities that it had recruited a simple majority of unionisable employees of the respondent as there is no evidence of recognition agreement between the parties. Counsel further submitted that in accordance with section 54(6) and 54(7), the parties ought to have resolved the issue of recognition first before instituting the suit herein. Parties ought to have undergone conciliation prior to the commencement of this suit. In that regard, counsel relied on the case Aviation & Allied Workers Union v. Air Kenya Express Limited & Anor.
7. Concerning one of the grievants namely Fridah Mbone, counsel submitted that she had not been employed for more than thirteen month’s hence she had no right to complain about unfair termination. Counsel relied on section 45(3) of the Employment Act.
8. The claimant on its part submitted that it had the requisite locus standi to commence the suit. In this regard, the claimant relied on article 22(d) of the Constitution which permits an association acting in the interest of one or more of its members to file a suit. Further section 2 of the Labour Relations Act defines an authorized representative to mean the secretary of a trade union. According to the claimant, under section 73(3) a trade dispute may only be referred to the Industrial Court by authorized representative of an employer, group of employers’ organization or a trade union.
DETERMINATION
9. Membership to a trade union is a constitutional right under article 41(2)(c) of the constitution. Section 54 of the Labour Relations Act however provides that an employer shall recognize a trade union for purposes of collective bargaining if the trade union represents a simple majority of unionisable employees employed by the employer. The foregoing implies that a person in employment in particular industry is free to join and participate in the activities of a union of choice in the sector. The union on the other hand by dint of section 73 of the Labour Relations Act can represent its members before the Court. Representation before the Court is regardless of whether the Union has a recognition agreement with the employer against whom the suit has been commenced or not. Recognition agreement is a prerequisite only in a case where the union concerned intends to engage in collective bargaining with the employer. The objection is therefore found without merit and is hereby dismissed with costs. The matter shall proceed for hearing on merit.
10. It is so ordered.
Dated at Nairobi this ……… day of…………. 2025
Delivered virtually this……… day of ………….2025
Abuodha Nelson Jorum
Presiding Judge-Appeals Division