https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1874

Kenya Plantation & Agricultural Workers Union v Flamingo Horticulture Kenya Limited (Flamingo Farm) (Employment and Labour Relations Cause E049 of 2024) [2026] KEELRC 1874 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1874 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Employment and Labour Relations Cause E049 of 2024 AN Mwaure, J June 26, 2026 Between Kenya Plantation & Agricultural Workers Union Claimant and Flamingo Horticulture Kenya Limited (Flamingo Farm) Respondent Ruling Introduction 1.Before this Honourable Court for determination is the conciliator’s report dated 26th January 2026. In that report, the Claimant states that in 2024 it conducted a membership recruitment exercise at the Respondent’s premises, during which it recruited approximately 1,488 unionisable employees from a total workforce of about 2,731. These employees duly executed check‑off forms (Form S), authorising the deduction and remittance of union dues to the Claimant Union. Having attained the statutory simple majority, the Claimant forwarded a Recognition Agreement to the Respondent by letter dated 24th May 2024, but the Respondent failed or refused to execute it or to provide a lawful justification. The Respondent also declined to commence the deduction and remittance of union dues despite service of the requisite statutory documents, prompting the Claimant to file an application dated 6th August 2024 seeking to restrain non‑compliance. On 12th February 2025, the court referred the matter to conciliation, and a Conciliator appointed by the Chief Industrial Relations Officer prepared the report dated 26th January 2026. 2.In the said report, the Respondent contested the Claimant’s majority, arguing that some employees listed were seasonal or casual labourers and thus not unionisable, and further questioned the authenticity of the check‑off forms, alleging duplication of names and signatures. The Conciliator’s principal recommendation was that a ground secret ballot be conducted to conclusively ascertain union membership and resolve the dispute. 3.Parties canvassed the report by way of written submissions. Claimant’s submissions. 4.The Claimant submitted that the Conciliator’s recommendation for a ground secret ballot is lawful, necessary, and appropriate in the circumstances, and urges its adoption by the Court. Reliance is placed on Kenya Shipping, Clearing & Warehouses Workers Union V Jihan Freighters Ltd [2003] KEELRC 12 (KLR) and Kenya Chemical and Allied Workers Union v Bidco Oil Refineries Ltd [2012] KEELRC 236 (KLR), where courts directed secret ballots as the most transparent means of resolving disputes over union membership and recognition. The Claimant argues that, given the Respondent’s contestation of the unionisability of certain employees and the authenticity of check‑off forms, a secret ballot conducted under neutral oversight would allow employees to freely and confidentially declare their wishes, thereby upholding fairness, voluntariness, and freedom of association under Article 41 of the Constitution. 5.The Claimant further submitted that the conciliators’ reports carry persuasive weight, citing the cases of Kenya Union of Commercial, Food and Allied Workers v Water Resource Management Authority & another [2015] KEELRC 740 (KLR) and Kenya Plantation & Agricultural Workers’ Union v Roseto Flowers [2013] KEELRC 587 (KLR), in support of that proposition and contended that the Conciliator’s recommendation is sound, practical, and responsive to the dispute. 6.Accordingly, the Claimant prays that the court adopts the recommendation and direct the conduct of a ground secret ballot as the fairest and most conclusive resolution of the matter. Respondent’s Submissions 7.The Respondent submitted that the Conciliator acted ultra vires under the Labour Relations Act, which only permits conciliation to result in either a written settlement agreement under section 68 or a certificate of unresolved dispute under section 69, not recommendations to the Court. The Respondent maintain that union membership can only be ascertained through signed check‑off forms (Form S) as provided under section 48, and recognition agreements under section 54, rather than secret balloting. 8.The Respondent further contended that the Conciliator was biased, denied their advocates participation contrary to section 58(1a) of the Labour Relations Act and Article 47 of the Constitution on fair administrative action, and failed to serve the report in time, thereby breaching Article 159(2)(b) of the Constitution on expeditious disposal of disputes. The Respondent also argued the figures relied upon in the report, asserting that as of 31st August 2024, the Claimant had recruited only 1,387 out of 9,925 employees (14%), far short of the statutory simple majority, and that the Claimant’s own Form S showed only 489 recruits. 9.The Respondent relied on several cases, including Kenya Airports Authority v Kenya Aviation Workers Union [2025] KEELRC 2861, where the court held that only a duly signed settlement agreement under section 68(1) of the Labour Relations Act binds parties. In Bakery Confectionary Food Manufacturing & Allied Workers Union (K) v Karibu Flour Mills Ltd [2025] KEELRC 1089, affirming that recognition is based on check‑off forms and majority membership under section 54 of the Labour Relations Act. In Tailors & Textile Workers Union v Summit Fibres Ltd [2013] KEIC 569, which clarified that conciliator’s reports are not binding but merely procedural exhibits. 10.The Respondent therefore submitted that the Conciliator’s Report was procedurally flawed, substantively unreliable, and not binding, and urged the court to disregard it and proceed to hear and determine the matter as filed. Analysis and Determination 11.The court has considered the conciliator’s report together with the rival submissions by both counsel; the issue for determination is whether the conciliation report is merited. 12.Section 54 of the Labour Relations Act provides that Employers, whether individually, collectively, or through employers’ organisations, including those in the public sector, are obliged to recognise a trade union for collective bargaining where it represents a simple majority of unionisable employees. Recognition must be formalized through a written agreement, guided by a model agreement that may be published by the Minister. Employers or their organisations may apply to the Board to terminate or revoke such agreements. Disputes over recognition or cancellation are first subject to conciliation under Part VIII of the Act, and if unresolved, may be referred to the Industrial Court, now ELRC, under a certificate of urgency. In adjudicating such disputes, the court must consider the relevant sector and the Minister’s model recognition agreement. 13.In Kenya Game Hunting & Safari Workers Union v Ensoit Ranch (Conservancy) [2014] KEELRC 1289 (KLR), the court stated as follows:“In order for a Union to attain recognition status, it is a requirement of the Law (S.54(1) LRA), that such union must represent the simple majority of unionisable employees. Section 54(1) of the Act is couched in such a way that once a trade union attains a simple majority of unionisable employees, recognition is a must.Whilst a reading of section 48 of the Act does not seem to tie deduction of trade union dues to entry into a recognition agreement with a union, a holistic and purposive interpretation of this section reasonably yields the meaning that no union deductions can take place on the basis of recruitment of members in a particular employ alone. Membership to a union is for purposes of collective bargaining which can only occur after entry into a recognition agreement. Any other interpretation would yield absurd results as no unionisable worker joins a union for the sake of it.” 14.In Kenya Shipping, Clearing & Warehouses Workers Union V Jihan Freighters Ltd(supra), the court held as follows:“On careful perusal of the parties submissions, I find that the Union have a strong case for recognition by the Company; but, on demand and contrary to the provisions of Section 46(1) of the Act, it refused to serve the check-off forms upon the Company for fear of victimization of the unionisable employees who became Union members. In the circumstances, the Court deems it fit or proper to find out the exact and true wishes of the unionisable employees regarding their Union membership and whether or not the Union has bona fide members among them; and the best way to do this is by giving the unionisable employees an opportunity to express their wishes through a secret ballot.Accordingly, the Court directs Mr. J.N. Macharia of the Economic Planning Division (EPD) to undertake this exercise and find out through a secret ballot and with reasonable access to the unionisable employees, in the presence of both parties’ representatives, whether or not the unionisable employees wish to belong to the Union. The exercise should be completed within one month from the date of this interim award, and the Court will make its final decision immediately on receipt of the results of the secret ballot.” 15.In Kenya Chemical and Allied Workers Union v Bidco Oil Refineries Ltd(Supra) the court stated that there was no consensus between the Union and the Interested Party both duly registered unions on whether to proceed with the multiple applications or to prepare and deliver an award. The dispute concerns which union is the proper representative of the Respondent’s unionisable employees, raising significant legal questions under Article 41 of the Constitution (workers’ rights to union participation), Article 36 (freedom of association), and section 54 of the Labour Relations Act, which requires consideration of the employer’s sector in recognition disputes. The Union urged the court to deliver an award, noting that the Judge who had earlier directed that one would be issued ceased to hold office before doing so, and that the legal framework has since changed with the Constitution of 2010 and the Industrial Court Act of 2011. Given that the matter was filed in 2009, the court acknowledged that circumstances may have changed: whether employees who signed check‑off forms remain in employment, whether others have since joined the Interested Party, or whether some signed for both unions. These uncertainties made it just and expedient to direct the Commissioner for Labour to conduct a ballot of the Respondent’s unionisable employees within 30 days and file a report with the Court. The Interested Party, having a direct and substantial interest, must also be heard to avoid prejudice. Further directions will be issued upon receipt of the Commissioner’s report. 16.In this instant case, the Claimant recruited employees at the Respondent’s premises through the execution of check‑off forms, securing the support of 1,488 employees out of a total workforce of 2,731, thereby attaining a simple majority. The Claimant subsequently forwarded a recognition agreement to the Respondent, who declined to execute it. Conversely, the Respondent contended that the Claimant had only recruited 1,387 employees out of 9,925, and therefore had not met the statutory threshold of a simple majority required for recognition. 17.The court notes that the central issue in contention is whether the Claimant has attained a simple majority of unionisable employees. In light of the Conciliator’s recommendation dated 26th January 2026, and guided by the relevant case laws, the court finds that the most appropriate and conclusive method of resolving this question is through the conduct of a secret ballot. Such a ballot would confirm the actual status of the Claimant’s unionisable employees and provide a fair, transparent, and definitive basis for determining the rightful union representative. The Respondent is able to also produce evidence of the number of its employees and the said employees will participate in a secret ballot voting. 18.Flowing from the foregoing, the court orders as follows:a.That the Commissioner for Labour, through the County Labour office in Naivasha, is hereby directed to carry out a ballot of the Claimant’s unionisable employees within the next 30 days in a secret ballot.b.Thereafter, the Commissioner of Labour is to file a report with regard to the secret ballot.c.The matter will then be mentioned on 24th September 2026 in court for final orders.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 26TH DAY OF JUNE, 2026.ANNA NGIBUINI MWAUREJUDGEOrderIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.