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 THE GOVERNMENT, THE WORKER
AND THE LAW IN KENYA
By F. R. Livingstone*

I. INTRODUCTION AND HISTORY

Developments in labour relations since Independence have re-
vealed many shared problems but varied attitudes and solutions in the
East African community. It is intended in this article to examine
Kenyan labour problems and solutions in such a way that the making
of certain choices by the Government becomes clear. The Kenyan Gov-
ernment's influence on labour relations has not been wrought only
through legislative control but also at all levels of industrial relations
machinery. The Kenyan Government is involved both as a big employer
of labour and through a sense of national urgency in the quest for
industrial peace. Professions of a laisser faire labour philosophy have
influenced the ways in which the Government has gone about gaining
control but nevertheless intervention in labour relations has been far
reaching.
The problems of urban and rural labour rouse many diverse
questions and the main emphasis in the following discussion will be
on the urban workers. The pattern of determination of labour matters
will be sought through an examination of various aspects of the urban
worker: his relationship with his employer, his participation in collec-
tive bargaining, his freedom to strike, the methods by which his wages
are determined and, finally, his trade union membership and the role
of COTU.
An understanding of the situation of the modern Kenyan workers
requires some analysis of the. way in which the Kenyan labour force
was developed. Colonial labour history is still relevant in seeking an
explanation of problems and attitudes which exist now although there
may also have been fundamental changes since Independence. Indeed
the ranges of choices open to the Kenyan Government since Independ-
ence has been limited by the situation it inherited from colonial times;
some of the measures taken have been dictated by exigencies which
arose in the colonial setting. In the following pages, the colonial labour
situation will be examined with particular emphasis on employers' at-
titudes to labour productivity and methods of procuring labour and
employees' attitudes to wage earning. The development of a labour
surplus after years of constant labour shortage will be analysed.
The British colonisation of Kenya brought with it a completely novel
demand for hired labour. Nineteenth century Kenya had not known the
institution of employment nor had it developed a cash economy. Work
was performed by family, or extended family, groups and, where there
was a shortage of hands, in peak periods, communal arrangements would
be made for exchange of labour'. Non-family members might be

*Assistant Lecturer, the University College, Dar es Salaam.

1. African Labour Survey - ILO, 1958, pp. 64-67
282
assimilated into the working group but their reward would be main-
tenance or a portion of land and their conditions of work and of life
would approximate to those of the "employing" family2.
The colonising community needed an immediate supply of labour.
The colonial Government needed to develop administrative facilities -
roads, railways and regional administrative centres. The settler commu-
nity wanted workers for their plantations, for services and later for
industries. Various methods of procuring labour from a population un-
accustomed to employment or cash requirements were used. Slavery by
the end of the 19th century had fallen into disfavour in England and so
never provided a solution for the labour seekers in the East African
Protectorate'. During the preceding period of Arab domination of the
coastal strip slavery had been widely practised but the British colonisers
had to use other methods to alleviate their labour shortage. They intro-
duced hut and poll taxes, creating an artificial need for cash amongst
the African population', who accordingly had to seek employment
with the Europeans. Failure to pay the tax could be rectified by a
period of employment without wages for the Government. Thus hut
and poll taxes were indirectly forced labour practices. Recruitment was
widely practised and recruitment agencies were established from early
times to meet the demands of employers'. Malpractices and the hardship
of recruited employees led to legislation on the matter. By statute the
employer was obliged to provide reasonable food and accomodation
for the journey; he had to employ the recruits by written contract; he
had to provide means of return to the recruiting area within a maximum
period of time. Misuse of the system was to be prevented by the
requirement that all recruiters must be licensed; however, in spite of
licensing, malpractices continued'. Contract labour was supplemented
with forced labour. Forced labour was used both as a punitive measure
and as a procurement of labour device. In conformity with ILO Con-
ventions, legislative provisions were introduced in 1932 to protect the
forced labour's conditions of work and wages'. The use of forced

2. African Labour Survey - ILO, 1958, pp. 70-72.

3. Proclamation abolishing slavery in Kismayu, Brava, (Merka) and Moga-
dishu. No. I of 1876.
Proclamation forbidding conveyance of slaves by land No. 2 of 1876.
Proclamation forbidding slave trading on the mainland. No. 3 of 1876.
Proclamation regrading freedom of all individuals belonging to certain
coast tribes. No. 1 of 1890.
Proclamation abolishing slave dealing. No. 3 of 1890 and No. 4 of 1890.
The Abolition of the legal status of slavery. Ordinance No. 7 of 1907.
4. Hut Tax Regulation No. 18 of 1901.
Native Hut and Poll tax Ordinance No. 2 of 1910
5. Notice re Provision of Native Labour. 18th November 1907.
6. Recruitment regulations remain in the statute book in Kenya today
but their presence there is anomalous since recruiting practices have
entirely died out. The Employment Ordinance, Revised Laws of Kenya
1962. Cap. 226 ss. 30-40
7. In 1947 the Department of Labour Report indicates that 4,458 Africans
were professionally recruited. The report complains of agents bribing
labourers to sign contracts.
8. ILO African Labour Survey, 295.
9. Compulsory Labour (Regulation) Ordinance No. 42 of 1932.
283
labour by private employers was entirely prohibited but, if the work to
be done was imminently necessary and was of "important direct inter-
est to the community" and if voluntary labour at current rates could
not be obtained, the Governor could authorise such work to be per-
formed with forced labour. All these methods illustrated the predisposi-
tion of the European employers to resort to compulsion rather than
attempt to attract labour through incentives to seek an improved stan-
dard of living.
Since it was neither wage incentives nor better conditions of life
which prompted the African to take up employment he was unlikely
to be a willing or ambitious employee. Employment was considered
by employers and employees alike to be a temporary affair and legis-
lation acknowledged what was happening in practice with protective
provisions for maximum duration of a contract and for repatriation of
employees". Much has been written on migrant labour in East
Africa", its effect on the land and on the labour force. Considering
migrant labour to be a waste of labour resources and a hindrance in the
creation of an efficient labour force, many of the efforts of Government,
both immediately before and since Independence, have been directed to
the creation of a permanent labour force. Until the 1950s very little
was done by the workers themselves to improve labour conditions or to
insist that employers provide for them and their families the wherewithal
to live permanently dependent on employment. The high labour turnover
and the low productivity of a uninterested labour force made it impos-
sible for labour to organise itself and bargain effectively with employers.
The shortage of labour and the employee's unwilling attitude to his
work were both clearly revealed in the legislative penalties for bicach of
contract. Dismissal and loss of his job was apparently no threat to the
Kenyan employee and absenteeism or leaving employment without law-
ful cause were deterred by threat of fine or imprisonment". Wilful or
negligent acts of the employee causing damage to or loss of the employer's
property were subject to heavier criminal penalties". Furthermore,
where the employee did serve a term of imprisonment for an offence
under the Ordinance, he was obliged, afterwards, to complete his
term of service, to which might be added the length of his term of

10. Master and Servants Ordinance, No. 8 of 1906.

Master and Servants Ordinance, No. 4 of 1910.
These provisions remain on the statute book today : Employment Ordi-
nance Revised Laws of Kenya Cap. 226 ss. 15-29.
11. See particularly : The East African Royal Commission Report 1953-55,
Cmd. 9475, Chapter 15; Walter Elkan. Migrants and Proletarians. Urban
Labour in the Economic Development of Uganda (1960).
12. Master and Servants Ordinance No. 8 of 1906 s.21.
These offences have survived not as crimes but as "gross misconduct",
Employment Ordinance, Cap. 226 (3); for further explanation see
later, pp. 280-281.
13. Master and Servants Ordinance, No. 8 of 1906 s. 22.
These offences survived virtually unchanged and were still crimes in
Kenyan law until 1963. Employment Ordinance Cap. 226 s. 48. Essen-
tial Services Act 1963.
284
imprisonment". The aim of the legislation was to ensure that employers
could keep their employees. It was not intended to deprive them of
employees. An employee was a valuable asset for whom the employer
had often made an initial outlay of capital and whom it was difficult
to replace.
Colonial employers, rather than seeking to revolutionise the labour
force by encouraging efficiency and commitment to the job, yielded and
adapted to existing employment attitudes. Authorised by legislation,
employers used extensively the ticket contract system of employment.
Under a ticket contract, an employee would be required to do 30 days
work, for which he would be paid 30 days wages, but this work he
could complete at will within 42 days from the commencement of the
contractu. In this way employers maintained large numbers of employ-
ees at cheap rates as a substitute for high rates of individual pro-
ductivity".
In the 1950s, the persistent labour shortage began to disappear and
to give way in its stead to the present urban unemployment problem.
This development had been largely predictable, since it arose from
sociological factors in evidence throughout East Africa. Population
pressure on the land led inevitably to a search for employment outside
the previous subsistence units. The extension of primary education
may have produced numbers of school leavers who were anxious to
find a more sophisticated form of existence than subsistence farm-
ing". The cash economy had penetrated into rural society: new cash
needs had arisen for such things as school fees, taxes and consumer
goods and, furthermore, many traditional transactions were now taking
place in cash", thus money was being used for dowries or payment of
extra labour on the land. Minimum wages for urban areas and the
attractions of town life encouraged many to leave their villages to
explore the available opportunities. Particularly around the time of
independence, expectations in the community were high and many
sought to reap the fruits of Independence in the towns. Added to the

14. Master and Servants Ordinance No. 8 of 1906 s. 24.

15. Kenya is the only one of the three East African countries to retain
the ticket contract in his legislation : Employment Ordinance, Cap.
226, s. 6. However duration of the contract has been reduced to 36
days - Act. 16 of 1937 s. 6. "Special contracts" may be made in
which the number of days worked must equal five-sevenths of the total
number of days of the duration of the contract : Employment Ordinance
Cap. 226 s. 7. These modes of employment seem largely to have fallen
into disuse.
16. The Carpenter Committee reports that remuneration under a ticket
contract would often in fact not exceed that under a monthly contract,
pp. 125-126.
17. Aspirations and Problems of Nigerian School Leavers. Inter-African
Labour Institute Bulletin Vol. XII, No. I, 1965; C. R. Hutton EAISR
Conference Papers No. 358, 1965 "Aspects of Urban unemployment
in Uganda."
18. ILO African Labour Survey, 1958, pp. 71-72.

285
problem of an increased volume of work seekers was the fact that emp-
loyment opportunity in Kenya, as elsewhere in East Africa, had been
declining since 1960 when the peak figure of 622,200 were in employ-
ment. Diminishing confidence in the political stability of Kenya and
reduction of the work force, as a result of increased minimum wages,
meant that far from Kenya coming to Independence with an expand-
ing labour market she inherited a shrinking one.
The unemployment problem which Kenya inherited upon achieving
Independence was however more extreme than that of the other East
African States and it was evident that that problem had been aggravated
by various additional and particular causes.
White settlement in Kenya was more extensive than in Uganda or
Tanganyika and in taking over the Kenya Highlands for cash crops the
Europeans displaced African peasants from a large proportion of
Kenya's most fertile land. A practice, supported by law', developed of
allowing landless Africans to "squat" with their families on European
land; they could cultivate for themselves and raise stock in return for
part time labouring on the land of the owner. In the 1950s signs of
the discontinuance of the resident labour system began to appear". The
settler farmers considered that the system inhibited good farming prac-
tices and led to spread of disease amongst their cattle. Squatters lost
their land and their source of livelihood, while farmers, as the labour
shortage became progressively less acute, could more and more easily
replace their resident labourers with smaller numbers of full time
contract labourers". In 1952 Emergency measures were taken and
thousands of Kikuyu were restricted or evacuated. Initially the security
measures caused a more severe labour shortage, particularly in areas
like the Rift Valley from which large numbers of Kikuyu were moved;
Kikuyu had been predominant in employment and so employers lost
much of their labour force". In the long run however, it contributed
to the unemployment problem as employers tapped hitherto unused
labour sources and, in addition, learnt to manage with greatly reduced
numbers of employees2 . Thus many of the displaced Kikuyu were, on
the raising of Emergency restrictions, to form a part of the urban
unemployed,
In 1956 and 1957 the Department of Labour reported for the first
time that there was a labour surplus and related its existence to the
relaxing of the security measures and the consequent release of many
more work seekers. These unemployed, unlike the unemployed else-
where in East Africa, had weak, if any, links with the land. The policy
of creating native reserves had resulted in population pressure on that
land available to Africans and the resultant creation of a work force
which was totally dependant upon wage earning.

19. An ordinance "to encourage resident labour on farms and to take

measures for the regulations for the squatting or living of natives
in places other than those appointed for them by the Government. .
Master and Servants (Amendment) Ordinance No. 7 of 1924.
20. Dept. of Labour Annual Report 1952.
21. Dept. of Labour Annual Report 1955.
22. Dept. of Labour Annual Report 1953.
23. Dept. of Labour Annual Report 1954.
286
 The International Bank for Reconstration and Development', ex-
amining the unemployment problem in 1962, warned against the use
of short term measures to combat it; the answer, they said, lay in
increased production and the consequent creation of new employment
opportunities. Pressure on the Kenyan Government resulting from the
social problem of unemployment was however too great to allow
it to heed this advice. In 1963, a Government White Paper pointed
out that short term measures may be essential for political peace and
stability without which economic progress cannot be made". The follow-
ing year an industrial agreement 6 was made whereby, in return for the
Kenya Federation of Labour's agreement to a wages and strikes standstill
for 12 months, the Government and the Federation of Kenya Employers
undertook to employ 15 percent and 10 per cent more employees
respectively. In a number of individual cases obligations under the
agreement were enforced against employees through awards of the
Industrial Court. According to a report of the Ministry of Labour",
employers fulfilled their undertaking as follows: private employers
placed 27,986 employees (original target being 30,000) and the Govern-
ment placed 8,792 employees (original target being 8,800); local
authorities only placed 1,529 from an original target of 6,000 and
the E.A.C.S.O. placed none at all of their original target of 5,000.
These methods employed to combat unemployment could evidently
have no lasting effect on the unemployment problem but they did at
least allow a temporary breathing space, pushing up the employed
population in 1963 to 594,000, higher than at any time since 1960.

II. THE EMPLOYMENT RELATIONSHIP.

In East Africa, the employment relationship was, from the time of
its first appearance, largely regulated by legislation'. The concept of
freedom of contract, which remained virtually untouched by the U.K.
Legislature until 19630, did not influence the colonial legislatures.
The result of an application of highly individualistic common law
principles by the East African courts combined with Kenya's highly
authoritarian centralised legislative provisions leads to an anomalous
and confused concept of the employment relationship. The legislature
in making provisions did not consider the relation of those provisions
to common law principles. Inquiring into the present rights and duties
of employment is similar to putting together a jigsaw puzzle where
the pieces represent two different pictures.
The requirement of a prescribed form for written contracts of

24. IBRD Report of an Economic Survey Mission 1962. P. 151 - 153.

25. Sessional Paper No. 1 of 1963.
26. Tripartite Agreement on Measures for the Immediate Relief of Un-
employment, February 10th, 1964.
27. Industrial Court Awards : Cause No. 6 of 1964 GN. No. 3777;
Cause No. 39 of 1965. G.N. No. 19.
28. Manpower Branch, Ministry of Labour and Social Services : Tripartite
Agreement, Basic Information, 29th October, 1964.
29. Master and Servants Ordinance No. 8 of 1906.
30. Contracts of Employment Act 1963.
287
employment is laid down in the Employment Acte: standard forms,
set out by rules made under the Act, must be used for individual
engagements and terminations and for "batch" contracts and termin-
ations". The information required includes duration of the contract,
notice provisions, rate of wages provisions for food and accomodation.
Where the employee cannot read and understand the contract and it
is a written contract for a period longer than six months a magistrate
must attest it to the effect that it has been explained to the employee,
otherwise the contract will not be enforceable against him". Oral con-
tracts may be made but are valid for only one month unless they
expressly indicate the contrary, by virtue of their provisions for the
giving of notice'. In the case of oral contracts, employers must make
returns to the Labour Commissioner with details of the engagement or
of termination and must give a copy to the employee; these details
involve less information than standard form written contracts do". While
the legislative provisions have remained substantially the same since
the beginning of the century, it is probable that, in practice, there
has been a change from predominant use of written to predominant
use of oral contracts especially since recruitment contracts and foreign
contracts of service, which were required to be in writing", are no longer
used.
Not only the form but also a substantial part of the content of the
employment contract has been regulated by legislation. English com-
mon law has been used as the basic interpretative guide to the terms
of employmentn but many of the presumptions and principles of the
common law have been superseded by provisions in the Employment
Act.
The implied common law obligations of the employer to his employ-
ees, such as his obligation to pay wages during sickness are widely
extended by statutory obligations to provide for the accommodation,
food, medical care or repatriation of his employees". While rules have
been made by the Minister to outline specific requirements for stand-
ards of sanitation' and medical treatmento the standards for housing
and food are not defined further than "reasonable housing" and "pro-

31. Cap. 226 s. 14. Various cases decided in East Africa show that a
written contract which does not conform to the statutory requirements
has no effect. Therefore it has been held that employees cannot be
convicted for employment offences, under such contracts -
7ones v. Mtama and others 1907 EALR Vol. II 24
R. v. Chinyonga and 4 others I T.L.R (R) I.
R v.' Kulala and 10 others 1904 EALR Vol. I 68
32. LN 487 of 1959
33. Cap. 226 ss. 8, 10
34. Cap. 226 s. 5
35. Cap. 226 s. 20 and LN 487 of 1959. Employers are also required to
keep written records of their employees.
36. Cap. 226 s. 9 and LN 487 of 1959.
37. E.g. Eber v. Thomsen (1935) 2 EACA 34.
Southern Highlands Tobacco Co. v. McQueen (1960) EA 490.
38. Cap. 226 ss. 23, 24, 25, 27, 29.
39. G.N. 1145/1949
40. G.N. 513/1953.
288
perly fed". There is now some argument whether the employers' respon-
sibility for the needs of his employees is not a paternalistic and his-
torical anomaly and should not be supplanted by the introduction of
wages sufficiently high to allow the employee to purchase these neces-
sities for himself. It was estimated in 1956 that 51 per cent of workers
in the private sector and 67 per cent in the public sector were housed
by their employer". Housing attached to employment entails the severe
disadvantage that the worker's home is dependent upon the con-
tinuation of his job. On the other hand, although the emphasis on
Government's responsibility to provide housing is increasing", public
funds do not yet admit of the possibility of State subsidised housing
for all. While much of the labour force is still not permanently urbanised
the burden of house building or buying cannot rest on the shoulders of
the individual employee. The 1966 Development Plan states "it is hoped
that employers will continue to cooperate by setting aside sufficient
capital to provide housing for the workers"". Provision of food by
employers arouses less controversy but those who support its con-
tinuance argue that productivity is increased by a sufficient midday
meal and it has been shown that many problems of productivity result
from malnutrition".
The common law requirement that, where there is no express pro-
vision to the contrary, reasonable notice of termination must be given
has been uprooted by the statutory provision that, where "no agree-
ment is expressed to the contrary" a contract is terminable without
notice, at the end of the payment period". Where imprisonment results
from an offence under the Employment Act the contract shall not be
frustrated, as it might have been at common law", but shall "remain
in full force and effect" although wages shall not "accrue during any
term of imprisonment'.
The Act recognises summary dismissal "for lawful cause" but leaves
the definition of "lawful cause" to the common law. Disobedience to
a lawful order thus gives grounds for dismissal: in one case*, it was
held that failure to comply with an order to work on a public holiday
entitled the employer to dismiss his employee and in another case" it
was held that an order to employees not to brew beer was not a lawful
order since it did not relate to the employees' duties under the con-
tract of service. Absenteeism without lawful cause, has been regarded
as sufficient to justify summary dismissalso. In 1898, in Postwalla v
Secretary of State", the court introduced the concept of natural justice

41. African Labour Survey, ILO, 1958, p. 427

42. Development Plan, Republic of Kenya 1966-70 pp. 333, 334.
43. Ibidem p. 335
44. E.g. Inter African Labour Institute, The Human Factors of Produc-
tivity in Africa.
45. Cap. 226 s. 16
46. Nordman v. Rainer
47. Cap. 226 s. 49 (1)
48. East African Trading Co. v. Seth I U.L.R. 21
49. R v. Mohamed & Another 1923 IX EALR 85.
50. The Uganda Company Ltd. v. Behari Lal. I U.L.R. 52
51. 1898 Vol. I EALR 1.

289
into summary dismissal. Instead of examining the grounds for dismissal
the judge argued that a Chief Engineer, who was under the employ-
ment contract made solely responsible for dismissing the plaintiff,
should have held an enquiry and not merely accepted his subordinate's
report on the plaintiff's misconduct. His failure to do so invalidated
the dismissal and gave rise to damages for the plaintiff. No later cases
follow this novel line of reasoning, which could be confined to the
facts of that case, since the contract laid down that the Chief Engineer
was to be "sole judge" of the employee's misconduct and it was the
phrasing of the power which seemed to have led the Court to regard
the dismissal as a quasi-judicial function.
It is laid down in the Act that where an employee is summarily dis-
missed "for lawful cause, other than for "gross misconduct", he shall
be paid his wage. . . up to and including the date of dismissal". While
the positive element of this section merely reiterates the provisions of
common law the exception of gross misconduct is in effect a diminution
of the employee's common law rights. Originally cases of "gross mis-
conduct", which include absenteeism without lawful cause, intoxication
during working hours, careless or improper execution of work, refusal
to obey lawful commands or use of insulting language to his employer",
were offences under the Master and Servants ordinance", and as such,
were adjudicated by a magistrate. It is indeed a strange liberalisation
of the law which takes the discretion to exact a penalty from the magist-
rates and puts it into the hands of individual employers.
Where damages have been awarded for wrongful dismissals by the
employer, the courts have sometimes merely assessed the amount of
wages in lieu of notice without discussing the basis on which damages
were being awarded". However these cases were explained consistently
with the principle of compensation for actual damage and duty to
mitigate in Adam v. Dilmirkhan". The court, in Patel v. Lockyer",
refused the plaintiff's plea for a month's salary in lieu of notice for
wrongful dismissal on the ground that he had not shown damage. In a
Tanganyika case, Southern Highlands Tobacco Union Ltd. v.
McQueen", the principle of mitigation of damages was applied, al-
though on the facts of the case it was held that the plaintiff, an account-
ant, was not forced to lay out money in building his own practice or
investing in a plantation in order to mitigate his damage".
Under the Act the magistrate is given other powers beyond the com-
mon law power of awarding damages for breach of contract. It is of

52. s 49 (3) Cap. 226

53. s. 49 (4) Cap. 226.
54. See earlier
55. Postwalla v. Sec. of State 1898 Vol. I EALR 8
56. I TLR (R) 585
57. 24 (2) KLR 24. See also Liberti v. Kassam 7ivraj - 24 KLR 4.
58. (1960) EA 490
59. Furthermore the court in determining whether tax should be deducted,
followed B.T.C. v. Gourley (1955) ) All E.R. 79 and Mpologama
Growers Co-op. Union Ltd. v. Gasston Barbour (1959) EA 307.
290
particular interest that "he may direct fulfilment of the contract" by
either party". Thus the accepted principle of the common law that a
contract for personal services cannot be enforced by a discretionary
order for specific performance is displaced by the East African legis-
lation. The legislation indicates yet again the pressure at the time
when it originated to keep men in their employment and the lack of
alternative methods of deterrence such as dismissal.
Under the Employment Act civil litigation has probably been less
frequent than criminal prosection. Desertion by the employee appear-
ed frequently as a cause of prosecution' but desertion is no longer an
offence in the statute book. Charges against employees for "neglect of
duty" or "drunkenness" leading to damage to the employer's property
were frequently brought". Employer's offences include failure to pay
wages". Indeed, for employer and employee alike, failure to "comply
with any of the provisions of this Act or of rules made thereunder for
which no special penalty is provided shall be liable to a fine not
exceeding six hundred shillings and, in default of payment, to im-
prisonment for a term not exceeding three months"". Since most of
the obligations imposed by the Act are imposed on employers, this
provision will chiefly affect them and they will thus be criminally
liable for non-observance of welfare provisions, or failure to fulfill
formal contractual requirements.
Enforcement of labour regulations against employers, whether by
civil or criminal action, can never be effective without inspection. Parti-
cularly where T.U. organisation is not strong, employees run the risk of
losing their employment if they pursue their legal rights independently.
Furthermore employees may not even be aware of their legal rights
and probably in Kenya until recent years, with the development of
KFL, and subsequently the Central Organisation of Trade Unions,
this was the case. The Act provides that Labour Officers and Medical
Officers should have wide powers of inspection to ensure that the
employer fulfills his obligation under the Act. A Labour Officer may
institute proceedings in respect of offences committed by the employer
and may appear on behalf of an employee in any civil proceedings
against his employer".

60. Cap. 226 s. 45

Police v. Petero and three others I.U.L.R. 12.
61. R. v. Kisa 20 (I) KLR 85
R. v. Mohamed Kambogolo I.T.L.R. (R) 48.
62. Cap. 226 s. 48
R. v. Gitwasi 20 (I) KLR 89
R. v. Chebund & Another 20 (I) KLR 90.
63. Cap. 226 s 53
In R v. Maling 2 ULR 149 the court held that "withholding" of
wages cannot be the subject of legal proceedings. The same distinction
between failure to pay and withholding of wages was made in
Stephanos Drossopoulos v. R. I T.L.R. (R) 175
64. Cap. 226 s 64
65. Cap. 226 s. 65 (g) (i) and (ii).
291
III. THE DEVELOPMENT OF COLLECTIVE BARGAINING
MACHINERY.
Legislative regulation of the employment relationship was until the
middle of the 20th century the only restraint on the employer's power
to dictate his terms. By legislation the employee was theoretically pro-
tected from starvation or destitution and the worst excesses of exploit-
ation were prohibited. However, extra-legal modes of control of labour
relations were slow to evolve. The migrant labour system produced an
unstable and constantly changing labour force, which could not easily
produce leadership or organisation. Those who later did emerge as
T.U. leaders were generally politically oriented rather than solely in-
volved in improving labour conditions; disputes often occurred as a
result of general discontent or misunderstanding rather than a direct
drive to better labour conditions. By the time Kenya gained Independ-
ence however, industrial relations techniques had become more sophistic-
ated. At the initiative of Tom Mboya, collective bargaining was institu-
tionalised through a number of national agreements, between the trade
unions, the employers' organisation and the Government. The develop-
ment of collective bargaining itself and the instruments created for its
furtherance - the Industrial Relations Charter, the Industrial Court,
the Tripartite Committee - will be examined below.
In 1937 the first Trade Union Ordinance" was introduced. Its pri-
mary purpose was to enforce registration of organised groups of work-
ers; any participation in organised activity where the union had not
been registered, was a criminal offence". Thus the colonial Govern-
ment was ensuring its control of T.U. development, which it considered
might be a threat to political peace in the colony. Six years later pres-
sure from, or rather financial persuasion by, the U.K. Government
resulted in the introduction of immunities for T.U. activities in trade
disputes". The United Kingdom legislation on T.U. immunities from
criminal and civil actions was followed almost word by word", except
for the fact that no unregistered trade union enjoys the "rights immunit-
ies or privileges of a registered T.U." 0. The introduction of criminal
and civil immunities left registered trade unions free to pursue col-

66. Trade Unions Ordinance No. 28 of 1937.

67. Similar provisions still exist in the present law Cap. 233 s 9.
68. Trade Unions and Trade - Disputes Ordinance No. I of 1943. On the
second reading of the Bill, Mr. Harragin pointed out that under the
second reading of the Bill, Mr. Harragin pointed out that under the
U.K. Colonial Development and Welfare Acts certain sums of money
were made available for schemes in the colonies only where the law
of the territory provided reasonable facilities for the establishment and
activities of T.U.s. Kenya Legislative Council Debates 18 March, 1943,
Vol. 16 p. 73. The relevant sections on immunities from civil or criminal
liability are now at Cap. 233.
69. Conspiracy and Protection of Property Act 1875 s. 3 compare Cap. 233
s 53 (1), (3), (4). Trade Disputes Act 1906 ss 1, 3, 4, 5 (3) compare
Cap 233 ss 53 (2), 23, 24, 2, respectively. The definition of trade
dispute in Cap 233 does not however repeat the word "workman" and
its definition from the Trade Disputes Act : the expression "employee"
is used and not defined. Consequently there is no extension of immunities
in trade disputes to sympathetic actions in the Kenyan legislation.
70. Cap 233 s 22

292
lective bargaining aims, using the strike to support their demands,
without risking action for criminal or civil conspiracy or various claims
for damages in torts.
The development of T.U. organisation was initially very slow : in
1948 there were three T.U.s on register. The Registrar General's Re-
ports indicate weak organisation and bad administration' of the early
T.U.s There were, however, instances of successful T.U. pressure.
Employers' refusal to bargain with the General Workers Union, Mom-
basa, led to an attempted general strike in 1947; a Commission of
Enquiry was set up and recommended an increase in wages and the
creation of industrial relations machinery. In 1948 the growing pressure
on employer and Government led to the introduction of an amend-
ment to the 1943 Ordinance to "adapt" the law to "Kenyan conditions".
The width of the Registrar's discretion to refuse or to cancel registra-
tion of a T.U. was considerably extended to prevent fragmentation of
T.U.s" and to prevent them being used for political purposes. Further-
more the Registrar was empowered to call for accounts between annual
returns. These extended powers of supervision of T.U. activity still
exist today"
The early 1950's saw an upsurge in industrial activity. The Depart-
ment of Labour reports an increasing use of consultative machinery",
the Kenya Federation of Registered Trade Union" was formed and,
in 1953 Tom Mboya became General Secretary. Although the Kenya
African Union was banned in 1953, the KFL, supported by the British
TUC and the ICFTU, survived the Emergency. ILO activity and
international trade unionism have educated world opinion to accept
trade unionism as a non-political right of man. But the trade unions,
though never suppressed, have never been granted recognition as a
legal right and, consistently with Kenya's laisser faire labour philosophy
it is only through bargaining strength that recognition can be claim-
ed"
Collective bargaining has been encouraged as the basis for industrial

71. Annual Reports of the Registrar General 1953, 1954.

72 Legislative Council Debates Colony of Kenya 19 March 1948 Vol. 29
p. 278. Registration could be refused on the ground that "another T.U.
already registered is sufficiently representative of the whole or a sub-
stantial proportion of the interests in respect of which the applicants
seek registration". (Now at s 16 (1) (d) of Cap 223) The files of
applications for registration of T.U.s reveal that this has been, to
date, the reason most commonly invoked for refusing registration. There
were long standing objections that this provision was unconstitutional
since s 24 (1) of the Kenya Constitution guarantees a person's "right to
assemble freely and associate with other persons and in particular to
form or belong to T.U.s or other associations for the protection of his
interests". It was not until the formation of COTU in 1965 that the
Constitution was famended to allow refusal of registration on the
grounds of s 16 (1) (d). The problem had of course become much more
urgent once there was the possibility of an attempt to form a federation
of trade unions to compete with COTU.
73. Cap 233 ss 16, 17, 50 (1)
74. Dept. of Labour Annual Report 1950.
75. The KFRTU was renamed KFL in 1955.
76. Trade unionism is organised on an industrial basis in Kenya, not on
a craft basis as it is in the U.K.

293
regulation since pre-independence days in Kenya. Negotiation be-
tween the two sides of industry has been relied upon as the pace-setter
in labour and management affairs. However national involvement in
and concern about the smooth running of industrial relations are often
more urgently felt by the Government of a developing country than
that of a fully industrialized society. In the former, a minor break-
down in industrial relations may cause a political crisis or a panic
situation in investment; negotiating machinery is not sufficiently well
established to absorb labour problems internally. In the latter, strikes,
lockouts and labour grievances, unless they develop into major political
action, are merely a calculated factor in annual labour costs. Further-
more in Kenya, the Government is itself the biggest employer of labour:
42 per cent of the labour force was employed in the Public Services
in 1965". It is this combination, of a reliance upon the collective
bargaining system and the involvement of government, which has
shaped labour relations in Kenya. The conflicting interests of employ-
ers, employees and Government have given rise to a tripartite pattern
of industrial organisation, which, although not consistently evident,
dominates the Kenyan industrial scene.
The Industrial Relations Charter" was engineered by Tom Mboya
in 1962. It was the first experiment of its kind in Africa and has
formed a basis for conduct of negotiations and for discussion on labour
management problems. The Charter was referred to in the 1963 Tri-
partite Agreement on the Immediate Relief of Unemployment and has
on occasion been invoked by parties before the Industrial Court. The
Charter is a good example of the Government's participation in indust-
rial relations: although it is a document which relates to the respon-
sibilities and practices of management and unions, it was signed by
the Government also and it was initiated by the Government alone".
The Charter, emphasising throughout the necessity for cooperation
in industry, formulates various principles of industrial conduct. While
some of these principlesso merely reiterate existing legal provisions of
common law or statute, others are agreements to regulate areas not
covered by law. Under the second head fall the agreed regulations on

77. Kenya Statistical Abstract 1966; furthermore, 49 per cent of African

employees were employed in the Public Services.
78. Signed in Nairobi on October 15th, 1962.
Tom Mboya "Freedom and After" pp. 192-194.
79. The preamble reads as follows :
"The Government of Kenya, the Federation of Kenya Employers and the
Kenya Federation of Labour :
(2) Realising that it is in the National Interest for the Government,
Management and Workers to recognise that consultation and
co-operation on a basis of mutual understanding render an
essential contribution to the efficiency and productivity of an
undertaking and that progress can only be made on a foundation
of good terms and conditions of employment which include
security of service and income, also the improvement of workers'
conditions of service,
(3) Desiring to make the greatest possible contribution to the success
and prosperity of Kenya :
agree upon the following Charter of Industrial Relations."
80. s 2 (ii), s 2 (iv), s 3 (vi).

294
recognition", on redundancy" and on intimidation". The disputes and
strikes procedure provided for in the agreement' have been largely
overtaken by subsequent legislation, which provides for the reporting
of trade disputes to the Ministry of Labour and enables the Minister
to declare a strike unlawful where the negotiating machinery has not
been exhausted". Indeed COTU has declared that the Charter "is now
in conflict with the Trade Disputes Act and the Presidential Declara-
tion, both of which call for a new Trade Union phase"."
It may well be that the Charter belongs to the industrial relations of
the past in that it assumed a decentralised system of industrial relations;
increased Ministerial power and the creation of COTU have since
introduced new centralised factors in the industrial disputes system.
COTU certainly no longer unreservedly supports the Charter, which, it
states, "has outlived its" purpose as "it stands now". The status of the
Charter being that of a voluntary agreement, COTU's withdrawal of
support necessarily hastens its demise.
Regulation of industrial relations by collective bargaining between
the parties requires, in the last resort, solutions to ad hoc disputes
through arbitration proceedings. The interest of the state in industrial
peace may involve the government in the setting up of some form
of permanent arbitration tribunal, reinforced by certain statutory
powers. In Kenya the decision to set up an Industrial Court was taken
as early as 1962". The Tripartite Agreement in 1964 included pro-
vision for the establishment of an Industrial Court, whose awards
would be "final and binding" for the twelve months of the Agreement.
In furtherance of this Agreement, the Industrial Court was established
by the Trade Disputes Act 1964", with a legally qualified President,
appointed by the Chief Justice". The Trade Disputes Act of
1965" replaced the earlier Act and the Industrial Court continued to
function, with some minor changes in its constitution.
The Court has two Vice-Presidents, who are independent members,
and two panels of ten members who represent employers and em-
ployees; all these members are appointed by the Minister of Labour'.
A Vice-President may act alone as chairman of the Court if so directed

81. A certificate from the Registrar to the effect that the Union is "properly
registered and exists effectively to represent the particular employees"
should be sufficient to afford recognition by the employer.
82. The principle of "Last in, First out" is accepted but only where "skill,
relative merit, ability and reliability" are equal. While the "principle
of severance pay" is agreed, its form and amount are subject to
negotiation.
83. Yellow dog contracts are outlawed, along with other practices dis-
criminating against employees for their union activities.
84. s 1 (iv) and the part on Strikes and Lockouts, Joint KFL-FKE Disputes
Commission.
85. Trade Disputes Act No 15 of 1965.
86. May-Day Message to the Workers of Kenya and Africa, Secretary
General of COTU. Hon. C. K. Lubembe. Nairobi, 1st May, 1967.
87. Tom Mboya "Freedom and After" p 193
88. Act No. 9 of 1964.
89. Act No. 9 of 1964, s 9 (i), Act 15 of 1965 s 9 s (1).
90. Act No 15 of 1965. See also LN No 154 of 1965.
91. Ibid s 9 (1)

295
by the President, panel members may be called upon by the President
to assist him in making awards 2. But it is the President himself who
dominates the workings of the Court: he may preside alone, and if
he calls for the services of the members appointed by the Minister
for Labour, his decision prevails where they do not reach agreement.
Thus the functions of the Court in decision making may be supposed
to be primarily judicially and not industrially orientated.
Appearance before the Court is generally voluntary: application
must be made "in writing jointly by the parties to a trade dispute".
There are however several circumstances in which the court has juris-
diction without the consent of both parties: either party may appeal
alone against certain orders made by the Minister under the Trade
Disputes Act", and the Minister himself may in some circumstances
refer a trade dispute to the Court". When an award is made, whether
as a result of voluntary or compulsory appearance of the parties, it
becomes "an implied term of every contract of employment between
the employers and employees to whom the award relates"." Thus the
award is enforceable between the parties. The statute does not provide
for the right of appeal from awards of the Industrial Court to the High
Court. Questions of interpretation of awards or of their inconsistency
with any written law are to be referred back for determination to the
Industrial Court itself". However the Court clearly exercises a quasi-
judicial function since its awards affect the contractual relationship
of the parties appearing before it, thus affecting their rights. Conse-
quently the High Court can review the proceedings of the Industrial
Court as regards its jurisdictional limits and its conformity with the
rules of natural justice. On 29.11.1966, the High Court issued an
order of prohibition to prevent the Industrial Court from hearing an
application to appeal against an Order made by the Minister: the
Chief Justice determined that the Industrial Court had no jurisdiction
to hear an appeal, or application to appeal, against an order which
had already been revoked by the Minister".
Every award must be published in the Gazette"; the practice has
been to publish also a summary of the arguments of the parties. It
is however impossible to build up from the published awards a co-
hesive body of Industrial Court practice. While the basic arguments
of the parties are presented, the President's findings of fact are not
usually set out and often, if reasons are given for the award, they are
cursory. This failure to develop precedent in the Court has been
criticised". However the purpose of the Industrial Court is to maintain
industrial peace by imposing a compromise solution in the dispute
before it. In many industrial disputes it would be impolitic for the
92. Ibid s 9 (3)
93. Orders under Part IV of Act No. 15 of 1965. See s 23 of the Act.
94. Act no. 15 of 1965, s 24, s 30.
95. Act No. 15 of 1965 s 10 (6)
96. Ibid s 10 (5)
97. This incident will be discussed below in full. See also Re East African
Railways and Harbours Administration. (General Manager) [1966]
EA 110.
98. Act No. 15 of 1965 s 10 (2)
99. The Kenya Industrial Court, Don Musch, E.A.L.J. December 1966
Vol 2 No. 4 p 266.
296
Court to reveal fully the basis of its decision'. To criticise the Industrial
Court for inconsistency and failure to follow precedent is to fail to
recognise its essence: the Court makes an ad hoc award on the
strength of the arguments presented to it, it is a part of the machinery
of collective bargaining and cannot be impervious to the industrial
strength or bargaining position of the parties before it. The use of
precedent involves the notion of social and national policy. There is
at present nothing in the constitution or terms of reference of the
Industrial Court which renders it competent to determine national
policy on industrial issues.
The absence of national policy from Industrial Court decisions has
caused some concern and criticism: the Court has been extensively
used' and many of the disputes referred to it have involved wage
claims'. The Kenyan pattern of tripartite decision involving the Govern-
ment established the Court but does not function within it and perhaps
future refinements in the Court's constitution may ensure represent-
ation of Government policy.
The 1965 Trade Disputes Act provides Ministerial machinery for
the settlement or conciliation of trade disputes. The Act introduces a
Tripartite Committee to deal with disputes reported: the Committee,
consisting of representatives of the Minister and organisations of
employers and employees', is merely an advisory body but the Minister
must consult it before taking any action'. Use of the machinery is
voluntary under the Act, a trade dispute "may be reported to the Minis-
ter by or on behalf of any party to the dispute"'. The Ministry of Lab-
our seems however to regard report to the Minister as a routine proce-
dure in respect of trade disputes' and in practice all trade disputes
1. Indeed s 15 of the Act restricts the publication of evidence in respect
of which either party has made a request for secrecy.
2. The number of awards handed down was 18 in 1964, 65 in 1965 and 89
in 1966. Reliance in the court appears to be increasing and in many
cases the parties fail to adequately resolve their problems by bargaining
before referring them to the Court, cf. E.A.L.J. Vol. 2 No. 4 p. 276.
The effect of Industrial Court decisions cannot be judged merely by
the number of awards handed down since other employers and employees
are evidently affected in their negotiations by those decisions.
3. See the following for examples of arguments presented in support of
wage claims :
Cause No. 21 of 1965 GN 3453, Gazette 21.9.65
Cause No. 52 of 1965 GN 637, Gazette 22.2.66
Cause No. 60 of 1965 GN 1041, Gazette 22.3.66
Cause No. 74 of 1966 GN 19, Gazette 3.1.67
Cause No. 76 of 1966 GN 4771, Gazette 28.12.66
4. The organisation of employers and employees represented are, of course,
FKE and COTU respectively. Before November 1965, KFL was regarded
as the central workers' organisation.
5. Act No. 15 of 1965 s. 5. M
6. Ibid s. 4.
7 On the 3rd November, 1965, a threatened strike in the Engineering
Industry, Thika, was declared illegal under s 19. Act No 15 of 1965. A
letter from the Ministry clarifing the position, indicated that the negotia-
ting machinery had not been exhausted : "You should make a point of
settling all complaints arising in the industry first with the employer in
accordance with your agreement, then with the nearest Labour Office
and if no settlement is reached the matters should than be reported to
the Minister as a trade dispute under the Trade Dispute Act 1965".
Letter of 16th November 1965.
297
which are not settled through local negotiating machinery or reference
to the Industrial Court are processed through the Ministry and its Tri-
partite Committee. Once more the pattern of active Government
participation in industrial relations activity is evident. The recom-
mendations of the Tripartite Committee are almost automatically
accepted by the Minister.
The Minister's powers for promoting settlement of the dispute are
wide'. He may accept or reject the report, "having regard to any
. . . matter which he considers to be relevant in the circumstances".
He may make proposals to the parties upon which a settlement may
be negotiated. The most frequently used of the Minister's powers have
been the powers to appoint a single conciliator or a single investigator;
only once has the Tripartite Committee recommended the setting up
of a committee of investigation' and rarely has it recommended that
the dispute be referred directly to the Industrial Court. Investigators
or committees of investigation appointed by the Minister must investi-
gate and report their findings to him but it is within their discretion
whether or not they make proposals or recommendations".
Where no trade dispute is reported but the Minister "is satisfied that Board of
any trade dispute exists or is apprehended" he may, on his own initi- Inquiry
ative, appoint an investigator or a committee of investigation". The
terms of reference of such an investigation will, as in the case of a
reported trade dispute, be necessarily narrow. Where, however, the
Minister wishes to investigate wider issues of dispute, he may appoint
a Board of Inquiry. The terms of reference of a Board of Inquiry
may be very wide: the Minister may refer to it "any matter which
appears to him to be connected with or relevant to any trade dispute
or to trade disputes in general . . . " Reports made by Boards of
Inquiry may be published at the discretion of the Minister and, of
course, publication will depend upon how far the report reveals issues
which are likely, if exposed to the public eye, to promote cooperation
by the parties'.

IV. STRIKE, LOCKOUT AND PICKETING.

Strikes, lockouts and picketing are the weapons of industrial dispute.
Where terms and conditions of employment are determined by the
parties' bargaining power each side uses these weapons to demonstrate
the strength of its bargaining position. It is as a result of these trials
of strength that compromise solutions between the parties are reached.
In some situations, while the basic principles of collective bargaining
have been preserved, national legislatures have intervened to prohibit
arbitrary use of industrial weapons. Such intervention has been declared

8. Act No. 15 of 1965 s. 5.

9. In 1967 a Committee of Investigation was established to report on
Private Provident Fund Schemes.
10. Act No. 15 of 1965 s 7 (3) and (4).
11. Ibid. s 7 (1).
12. After the recent Board of Inquiry to examine the grievances of the
Kenya National Union of Teachers, the Minister refused to publish the
Boards' findings, to the consternation of KNUT.
298
to be in the interests of national industrial peace or of national pro-
ductivity. It has been argued above that Kenya's approach to indus-
trial relations since Independence has been strongly oriented to collec-
tive bargaining but that, on the other hand, the Government has seen
itself as closely involved in the development of industrial relations.
How far the prohibitions on strikes, lockouts and picketing are con-
sonant with these aspects of Kenya policy will be discussed below.
Collective bargaining activities have been regarded in the U.K.
until very recently, as a jousting ground for the parties, where strength
determines the outcome. Now indeed trade union strike action, in the
U.K., is limited by the Prices and Incomes Policy; strikes in support
of claims which are illegitimate under the Act may result in criminal
prosecution of participants". But, throughout the colonial period when
English law could have been a source of guidance to the Colonial Legis-
lature in Kenya, the legislative attitude to trade disputes activities was
laisser faire. The U.K. Parliament long ago freed the 4parties to a
trade dispute from the shackles of liability for criminal and civil"
conspiracy wherever the concerted action would not have been a crime
or a tort if done by one person. Furthermore individual activities in
furtherance of trade disputes were not to be actionable on the ground
only that they induced some other person to break a contract of
employment, or that they were an interference with the trade, business
or employment of some other person, or with the right of some other
person to dispose of his capital or labour as he wills". The trade union
itself was protected from action "in respect of any tortious act"".
By thus removing the threat of imprisonment, fines and heavy damages
hanging over trade union action the legislation cleared the ground for
an equally balanced tournament between employer and employees. The
effectiveness of their respective weapons, unhamperd by law, depended
upon the conditions of the labour market, the irreplaceability of the
employees' skills, the capacity of the enterprise to comply with the
employees' demands or to withstand the losses occasioned by pro-
longed strike action, the amount of trade union strike funds.
Induced by the Colonial Development and Welfare Act to liberalise
its labour laws in order to qualify for U.K. aid and investment"s, the
Kenyan Legislature introduced, in 1943", civil and criminal immuni-
ties for trade disputes activities patterned on the U.K. legislation". Any
restrictions on such activities were indirectly exercised through the
requirement of compulsory registration of trade unions and the illegality
of participation in an unregistered trade union. The Registrar was
given wide powers to refuse registration'.
Since Independence Kenya has abandoned the previous laisser faire

13. Prices and Incomes Policy Act 1966 s. 16, 28 (4)

14. Conspiracy and Protection of Property Act. 1875. s.3
15. Trade Disputes Act 1906. s. 1
16. Ibid s. 3
17. Ibid s. 4
18. Kenya Legislative Council Debates 18.3.1943, vol. 16 p. 73
19. Ordinance to Regulate Trade Unions and Trade Disputes No. 1 of 1943
20. See page 292 Footnote 68.
21. See page 293 and Footnote 72.
299
attitude to strikes, imposed on the colonial legislature by pressure from
London. In 1965", the Minister of Labour was given the power to
prohibit arbitrary strike or lockout action. The Minister may declare
a strike or lockout (actual or threatened) unlawful where the parties
have not yet exhausted their negotiating machinery23 or where there is
an agreement or award regulating the matters under dispute2' or, further-
more, where the action is sympathetic and not related to a dispute
within the employee's own industry". Where a strike or lockout is
declared unlawful, participation in it is an offence under the Act and
is punishable by fine or imprisonment'.
It is consonant with the development of Kenya labour relations that
initiative in preventing strike action should rest with the Minister
and not, through court injunctions or civil actions, with the employer.
The national interest in industrial peace and the political tensions
between the African employee and his European or Asian employer,
make it preferable that it should not be the employers who determine
the desirability of preventing strike action by taking their employees
to court. Nevertheless Government is itself the biggest single employer
in Kenya and resentments against Ministerial action may be found
to be more intense amongst government employees than in the private
sector.
Although the vast majority of strikes occur without intervention by
the Minister", the tactical importance of his power to prohibit strikes
is unquestionable and the most controversial of Kenya's strikes have
been suppressed by its usage". While immunities in criminal law and
tort for trade union activity remain on the statute book", the emphasis
has been drastically changed by the 1965 legislation so that it seems
unlikely that employers would attempt to pursue their rights in the
civil courts, as they do in the U.K.
Where the Minister has used his power to declare a strike unlawful,
he has, in the great majority of cases, relied upon s. 19 of the Act:
which lays down that a strike may be declared unlawful where "there
is machinery of negotiation. . . in that section of the industry; and
a substantial proportion of employees. . . are. . . parties to any agree-
ment or arrangement for use of that machinery; and that machinery
is suitable for the settlement of that dispute; and that all practicable
means of reaching a settlement through that machinery have not been
exhausted"
Argument against the Minister's orders may be presented to the
Industrial Court, where a right of appeal lies for the employer or
employees to whom the order applies. Thus the Industrial Court

22. Act No. 15 of 1965

23. Ibid s. 19
24. Ibid s. 20
25. Ibid s. 21
26. Ibid s. 25
27. Out of 153 reported strikes in 1966 only 17 actual or threatened
strikes were declared unlawful.
28. E.g. The strike by Kenya National Union of Teachers, commencing
1.11.1966.
29. Cap. 233 ss. 23, 24, 53.

300
should be the chief interpreter of the provisions of the Act. However
the right of appeal may turn out to be an illusory one. The only
attempt to appeal under s. 23 of the Act was made by KNUT in
November 1966 but, before the Industrial Court could hear the appli-
cations to appeal, the Minister revoked his order and the High Court
intervened with an order of prohibition to prevent any further dis-
cussion of the matter by the Industrial Court.
The KNUT trade dispute at the close of 1966, caused by the long-
standing demands of the Kenya National Union of Teachers for higher
wages and one single employer, provides an interesting case study of
a Ministerial Order under the Act and it merits a full treatment here.
On October 29th, the Minister made an order under s. 19 declar-
ing unlawful a threatened strike by KNUTo. Nevertheless on November
10th 31,000 teachers came out on strike and the Secretary-General of
the Union, Mr. Kioni, stated: "we are testing the validity of the
Minister's Order in the Industrial Court as a matter of urgency because
his order hinges on our having exhausted negotiating machinery which
does not exist". The hearing of KNUT's application for leave to
appeal was arranged for November 3rd", but on that date Mr. Kioni
and eight others were charged with and arrested for offences under
the Trade Disputes Act", s. 25 of that Act imposes criminal liability
for participation in any strike "declared by or under this Act to be
unlawful". The strike was not discussed in Parliament since the matter
was now sub judice". In the Industrial Court the application for leave
to appeal was adjourned to give the Government time to "study a
rapidly changing situation". The advocate for the Minister argued that
continuation of the hearing would be prejudicial to the proceedings of
the criminal case before the High Court". It would seem dobutful that
such an argument could hold water in view of the fact that appeals
under Part IV of the Act (which KNUT's appeal was) are specifically
excluded from the general prohibition on the Court not to take "cogniz-
ance of any trade dispute or deal with any matter connected therewith
. . . while such dispute or matter is in the process of being deter-
mined by means of any other proceedings under the Provisions of
this Act or of any written law".ss
On the 7th of November the Minister revoked his order - the re-
vocation was headed "Order under ss. 22 and 23 of the Act" but in
fact only s. 22 of the Act refers to revocation by the Minister, start-
ing "An order. . . shall continue in force until it is revoked by the
Minister . . ."". The reasons given for revocation by the Minister
were that KNUT had now agreed to call off the strike but nevertheless
his revocation had further reaching effects than were immediately fore-
seeable. The President of the Industrial Court, Mr. S. Cockar, said

30. The Daily Nation 31.10.66.

31. Ibid 2.11.66 see also Act No. 15 of 1965 2.23 (1) and Industrial
Court Procedure Rule 7 (2). The appeal was No. I.C. App. 1/66.
32. The Daily Nation 3.11.66.
33. Ibid 4.11.66
34. Ibid.
35. Act No. 15 of 1965 s. 9 (b).

301
"As far as the Union is concerned, the revocation of the order by the
Minister disposes of the application" but nevertheless the Court in-
tends to complete the hearing to enable the making of an order as to
costs. However the Court was forestalled by first the issue of an
interlocutory order of prohibition" and later a final order of prohibi-
tion' from the High Court. The Chief Justice gave the grounds for
issuing the order as the fact that it was "abundantly clear" that the
Industrial Court had no jurisdiction to continue the hearing since there
could be no power to "confirm, vary or revoke" an order which had
already been revoked". Consequently on the 17th of February, on a
new application for costs, the Industrial Court once again declined to
determine the question of costs, and no order as to costs was made".
It was not until March 1st 1967 that nolle prosequis were entered
by the Attorney General in the prosecutions of Mr. Kioni and the
other trade union leaders. Mr. Kioni remarked that many costs would
have been saved had this action been taken earlier.
Since an order made by the Minister "shall continue in force until
it is revoked"', it would be thought that the Act, in providing for appeal
against such orders, should have intended that, were the order invalid,
the employees would have some redress against the Minister. Never-
theless the powers given to the Industrial Court under the Act are to
"confirm, vary or revoke the order and give such directions as to the
costs of the appeal as the court thinks proper" and thus as the High
Court ruled, a prior revocation by the Minister leaves the Industrial
Court without jurisdiction to give any form of redress. Thus the
Minister may temporarily declare a strike unlawful and avoid review
of his order by the Industrial Court by revoking his order before the
hearing of the appeal. It is likely that the employees could in such
circumstances take an action to the High Court for damages against
the Minister, on the grounds that he acted ultra vires the statutes, but
the statute itself provides no protection for the employees.
Although the revocation order displaces the jurisdiction of the
Industrial Court the prosecutions are apparently not invalidated since
revocation does not imply that the strike was never "declared. . . un-
lawful"", but merely that it does not continue to be so". If the prose-
cutions are heard by the High Court, the issue must be determined
whether or not the Minister's declaration was or was not a valid one
before the accused can be found guilty. If however the Minister chooses,
as he did in this case, to enter a nolle prosequi, the accused may be
remanded in custody, restricted to the country, forced to find the money
for bail for a considerable length of time before the charge is dropped.
Again the bringing of the charge will not be subject to review, under
the Act, although it might possibly be that an action for damages

36. Ibid s. 22 (1)

37. The Daily Nation 10.11.66.
38. Ibid 30.11.66
39. The Daily Nation 30.11.66; Act No. 15 of 1965 s. 23.
40. The Daily Nation 18.2.67.
41. Act No. 15 of 1965 s. 22 (i)
42. Ibid s. 25 (1)
43. Ibid s. 22 (1)

302
 for malicious prosecution could be brought against the Minister in
the High Court.
Sympathetic strikes may be prohibited by an order of the Minister
under s. 21 of the Act. This is a departure from the U.K. legislation
which protects sympathy strikes in the same way as other strikes which
are in contemplation or furtherance of a trade dispute". Clearly the
Kenyan provision is included for fear of concerted political action by
T.U.s however a perusal of the files shows that the Minister's power
has been rarely used to prevent sympathetic striking".
Protection o While participation in any strike may, in those circumstances dis-
life and cussed above, be made an offence by the Minister's intervention, strikes
re t in essential services are automatically an offence if they "deprive the
services public or any section of the public of that essential service or sub-
stantially . . .diminish the enjoyment" of it". The wide wording of this
section must necessarily implicate any essential services strike which
has even the slightest chance of succeeding. While the U.K. legislation
creates an offence of "maliciously" striking where there is "reasonable
cause to believe that the probable consequences, will be to endanger
human life, or cause serious bodily injury, or to expose valuable pro-
perty . . . to destruction . . ."' it does not approach the extensive
coverage of the Kenyan prohibitive legislation. The latter requires no
malice, nor does it require any evidence other than the likelihood of
substantial diminution of enjoyment of the service. Indeed the Act
provides that all strikes, whether in essential services or not, should
be subject to the same qualification as in the U.K. legislation as
regards protection of life and property: yet, even for this general
offence, malice is not required to be proved". Disputes in the
essential services are subject to compulsory arbitration before the
Industrial Court, at the Minister's discretion". Only if the Minister
fails to refer the dispute (within 21 days of its being reported) to the
Industrial Court, and if the employees then give notice of the strike
to the employer and 7 days have elapsed, will the strike become lawful.
After a lapse of 60 days from the first report of the dispute, a strike
resulting from the dispute will no longer be lawful even if all the

44. Trade Disputes Act. 1906 s. 5 (3)

45. Kenya Plantation and Agricultural Workers Union staged sympathetic
strikes in Limuru and Tigoni on 19.5.66 - the Minister prepared
an Order under s. 19 and not s. 21, although the strike was settled
before the order was served. On only one occasion has s. 21 been
invoked and then it was invoked along with s. 19 to prevent a
threatened strike of the Domestic and Hotel Workers' Union, 5.3.67 :
DHWU was threatening a strike of all members whether employed by
hotels, clubs, bakeries, schools, colleges or private homes to pressurise
the Minister to establish a Wages Council for domestic servants or to
abolish the employment of domestic servants entirely.
46. Act No. 15 of 1965 s. 28.
The essential services are listed in the First Schedule of the Act and
include amongst others electricity, health, water, sanitary services and
public transport services.
47. Conspiracy and Protection of Property Act 1875 s. 5
48. Act No. 15 of 1965 s. 33
49. Ibid s. 30
303
conditions for lawfulness have been satisfied". If the employees fail
to take their opportunities to strike within that time limit, they will
have to recommence the statutory procedure.
The statute defines "strike" as a "cessation of work . . . or a con-
certed refusal . . . to continue to work or to accept employment"". This
definition appears to exclude go-slow or work-to-rule and there has
been some consternation in Kenya that the Minister's power to dec-
lare a strike unlawful do not extend to these activities. The sections
of the Act which deal with strikes in essential services or endangering
life or property avoid the limitation of the strike definition by using
the words "wilfully breaks his contract of service". It is worthy of
note that the Tanzania Permanent Labour Tribunal Act, 1967, has
specifically included the go-slow in its strike provisions.
In 19432 the Colonial Government introduced in Kenya apparently Picketing
similar offences and rights in regard to picketing as those existing in
the U.K. legislation". However the qualification on those rights and
liabilities in the Kenya legislation are enough to dispel any illusion that
they are in reality the same as those in the U.K. While the 1943
Ordinance followed the U.K. wording in prohibiting intimidation, per-
sistent following, hiding of tools or other property, watching or besetting
or following in disorderly manner", it defined intimidation in a novel
way: "to intimidate" means to cause in the mind of a person a reason-
able apprehension of injury to him or any member of his family or
to any of his dependants or of violence or damage to any person or
property" and then "injury" was further defined as including "injury
to a person" in respect of his business occupation, employment or
other source of income and includes any actionable wrong"". Evidently
the scope of prohibition of picketing was greatly increased by these
wide definitions, which introduced many more circumstances into the
meaning of intimidation than can be found in its common law mean-
ing. Nevertheless the Kenyan statute followed the 1906 Trade Dis-
putes Act in permitting employees to attend "for the purpose of peace-
fully obtaining or communicating information, or of peacefully per-
suading any person to work or abstain from working"". However this
permissive provision was qualified: such attendance shall not be law-
ful if "they so attend in such number or otherwise in such manner as
to be calculated to intimidate any person in that house or place . . ."1.
Once again intimidation must be interpreted in its wide statutory
meaning and so the inclusion of this "numerical clause" considerably
restricted the right to peacefully picket.

50. Ibid s. 29
51. Ibid s. 2
52. Ordinance to Regulate Trade Unions and Trade Disputes No. 1 of 1943.
53. U.K. Conspirary and Protection of Property Act, 1875, s. 7 and Trade
Disputes Act, 1906, s. 2
54. No. 1 of 1943 s. 21 (1)
55. Ordinance No. 1 of 1943 s. 17. This definition was used in the U.K.
from 1927, after the General Strike, until 1946. See also Republic v.
Valambia [1963] EA 12 (a Tanzanian case).
56. Ibid s. 22 (1)
57. Ibid s. 22 (2) and s. 21 (2)
304
 Since Independence the attitude towards picketing has not been
liberalised. While in the U.K. picketing provided workmen with a
peaceful way of making their strikes more effective or of pressurising
employers without needing to resort to a strike, in Kenya the legislation
is now harsher in its prohibition of picketing than in its prohibition of
strikes. In 1965, all the permissive provisions" existing in the legis-
lation were repealed and only the prohibitive provisions were retain-
ed. The prohibition of attendance in "such numbers or otherwise in
such manner as to be calculated to intimidate . . . "remains on the
statute book along with the wide definition of intimidation introduced
in 1943". Thus it would seem that strikers gathering outside a factory
might be guilty of an offence if their employer feared that a drop in
the value of his shares would result. The possibility of picketing against
management without committing an offence is indeed remote. Nor can
strike organisers hope for liberty of action in persuading black-legs to
join a strike. There is an absolute prohibition against watching or beset-
ting "for the purpose of inducing any person to work or abstain from
working" whether done by one person or more than one person". How-
ever the other listed offences of picketing, derived from the U.K.
Conspiracy and Protection of Property Act, have been removed from
the statute book and thus some marginal cases of picketing by indi-
viduals may fall outside the net of illegality.
It can be seen that since Independence the Kenya Government has
restricted the use of the weapons of industrial conflict. The lockout
is subject to the same powers of the Minister to declare it unlawful as
the strike. Lockout however has never played such an important role in
labour relations as the strike since employers generally attempt to
preserve the status quo not to change it. The legislative restrictions
therefore limit the activities of employees more than those of employ-
ers. The carefully preserved balance of effective bargaining strength
has been radically altered.
It may be argued that the creation of the Industrial Court restored
the balance by providing a forum for collective bargaining where the
strike weapon was immaterial. On the other hand, as was pointed out
above, the parties appear before the Industrial Court with bargaining
positions already adopted; the Court can only effect a compromise
between those positions.
The measures limiting strike action and picketing can be justified
in the light of national productivity and the political interest in in-
dustrial peace. Can they be justified in the light of Kenya's collective
bargaining philosophy? Once the Government admits its concern in the
course of labour relations is so profound that it takes to itself power

58. In 1960, all previous provisions were repealed and the only section which
remained on the statute book related to the lawfulness of attending to
peacefully obtain or communicate information or persuade any person
to work or abstain from working : Act 54 of 1960 s. 35. The law as
it resultingly stood, at Cap. 233 of the Revised Laws 1962 ss 51
and 52, was incomprehensible since the provisions related to prohibitions
which were no longer in force.
59. Act 15 of 1965 s. 45
60. Ibid s. 45 (3)

305
to intervene in trade disputes, not merely by conciliation but also by
prohibition, can the Government still profess that labour terms and
conditions must be regulated by agreement between the parties and
not by a centralised national policy?

V. MINIMUM WAGES AND THE DEVELOPMENT

OF WAGES POLICY
In early colonial times, food and accommodation sufficient for sub-
sistence purposes were provided for the employee and wages were a
marginal remunerative addition. Wages were not used as an incentive
to encourage employment; as has already been noted, other rather
more direct methods were used for that purpose". An employee was
not expected to be accompanied by his family and so maintenance of
dependants was not catered for in his wage. While minimal legislative
standards were set for the provision of food and accomodation from
the earliest colonial days", it was not until 1932 that there was any
attempt made to regulate minimal cash remuneration. In 193263, the
Governor in Council was given the power to fix minimum wages where
wages in any occupation were "unreasonably low".
Temporary regulation of wages by the Emergency Powers (Relief)
Acts, during the second world war, paved the way for the first
effective permanent regulation of minimum wages in 1946". The 1932
criterion of "unreasonably low" wages in particular occupations was
abandoned in favour of a more general minimum wage, applicable to
classes of employees as recommended by an Advisory Board. The
classes of employees affected by the general minimum wage were
defined by the urban area in which they worked. Under the 1946 Ordi-
nance was established the Minimum Wages Advisory Board, upon whose
recommendations the Governor in Council usually acted. Wages regu-
lation orders were made in 1947 for Nairobi, Kisumu and Mombasa
Island. The highest of the wage levels was set for Mombasa employees,
who were to receive a minimum of 40/- a month including their
housing allowance',. Calculation of the minimum wage by reference
to region was a necessary corollary of the wages policy of the time :
the minimum was calculated as a computation of the essential needs
of a single man, in view of the cost of living" and was not related to
profits, productivity, conditions of labour or any other occupational
variant of employment.
In 1953 a Committee" was set up to review the wages situation in
Kenya. The Committee accepted the fundamental principles of the
Poverty Datum Line as a basis of assessment but recommended an
increase in the calculation of essential needs'. The Committee arrived

61. See earlier pp. 1-2.

62. Native Porters and Labour Regulations No. 3 of 1902
63. Minimum Wages Ordinance No. 22 of 1932
64. Minimum Wages Ordinance No. 55 of 1946
65. GN. No. 57 of 1947
66. Report of the Committee on African Wages, Nairobi, 1954 para 136.
67. Ibid. alias the Carpenter committee
68. Ibid Table XXII
306
 at the conclusion that the existing minimum wage which had been
prescribed as a "social safety net" had in fact "acted like a magnet
to hold down wages" and that therefore assessment of the minimum
should be more liberal'.
Furthermore the Committee recommended discontinuance of pay-
ment of a bachelor wage and the gradual change-over to a family wage.
They pointed out the relation between bachelor living and migrancy
of labour and argued that basing wages policy on the bachelor wage
was tantamount to encouragement of migrant labour". One membern
of the Committee refused to sign its recommendations on the ground
that no attention had been paid to the question of productivity of
labour and supply and demand on the labour market and that,
consequently, the recommendations were not in the long term interests
of the Colony. The Kenyan Government partially concurred with
that dissenting voice and, while accepting the need for stabilisation of
labour, rejected the family calculation in favour of calculation, for
adult males, for a man and his wife.
After 1954, minimum wages rose steadily and the number of
regions affected by the legal minimum increased : in 1948, there
were nine urban areas subjected to minimum wage relations and in
1962 there were thirteen, which number has remained constant to
date. The level of the present minimum wage for Nairobi is 118/- for
an adult employee and 35/- for his housing allowance while it is
79/- for an employee under the age of 21, with a housing allowance
of 17/507.
Regional wage fixing for non-urban areas presented problems both
of assessment and enforcement. A great variety exists in the terms of
employment and in the incomes of the employers. Many small farmers
may make arrangements with employees that they work for maintenance,
which may be equivalent to the living standards of the employer
himself". In 1962 statutory provision was made for the establishment
of a separate Agricultural Wages Advisory Board, however no regional
rural wage has yet been established.
Alongside the basic minimum wage provisions, Kenya has a Wage
Council System almost identical in constitution and procedure to that
in the U.K. In 1951" the Minister was given the power to establish
Wages Councils on the recommendations of the General Wages Advi-
sory Board. The function of the Wages Councils is to simulate collective
bargaining where there is no "adequate machinery . . . for the effective
regulation of the remuneration or other conditions of employment
of the employees in any trade, industry or occupation". Wages Councils
have been established for, amongst others, the tailoring trade, hotel and
catering, road transoort and the construction industry. The most recent

69. Ibid paras 139, 140

70. Ibid para 182
71. Mr. F. T. Holden
72. Sessional Paper No. 21 of 1954.
73. LN 31 13/1963
74. African Labour Survey ILO 1958 pp. 70-72
75. Regulation of Wages and Conditions of Employment Ordinance No. I
of 1951. Now at Cap. 229, Part III and IV.
307
 addition to the list is a Wages Council for Domestic Servants, which
was established this year. There has been in existence since 1963 an
Agricultural Industry Wages Council" but as yet no wages orders
have been made under its auspices. While Wages Council wages must
necessarily rise above the regional minimum they do not rise to the
tevel of those wages negotiated through voluntary collective bargaining.
What are the present trends and problems of wages in Kenya?
While at the time of the Carpenter Committee average wages may
have been largely determined by the level of the legal minimum, in
more recent years other developments have ensued. During the Emer-
gency, average wages shot up, although the legal minimum remained
unchanged, as a result of the labour shortage caused by restriction of
the Kikuyun. In 1956 to 1957, wages stabilised as the Kikuyu were
once more released onto the labour market. During and after the
Emergency the developing strength of trade union activity permanently
affected the wages structure in Kenya by galvanising the workers'
bargaining power.
The problems of increasing wages in Kenya are manifold. Faced
with the threat of an increased wages bill, employers rationalise their
labour force and aggravate the already pronounced trend towards
decreasing employment opportunities". Inefficient use of labour in the
past now enables the employer to considerably reduce his work force
without affecting adversely its total productive capacity7'. Since a part
of Kenya's population is now permanently urbanised, reduction of
labour force means an unemployment problem. Furthermore rural
subsistence is extremely low and every wage rise acts as an additional
attraction of urban living. The influx of people from country to town
has led President Kenyatta to repeatedly ask those without employment
in town to return to farming.
On achieving Independence, the East African States agreed upon a
high wages policy". Recognising the problems of such a policy, they
nevertheless determined that "in the long run it was better to have
a smaller but satisfied and efficient labour force rather than a large,
badly paid and frustrated labour force". Nevertheless in 1963, as
has already been discussed, the Kenya Government was instrumental
in promoting agreement for a wage standstill in return for an increase
in the ontake or labour". The problems thus remain in evidence and
their solution is not clear. Yet the problems which emerge - un-
employment and the drift into the towns - are problems which must
involve Government rather than employers in questions of wage
restraint and, consequently, the existing pattern of having tripartite

76.LN 789/1963; LN 284/1963; LN 216/1964.

77. Dept. of Labour Annual Report 1954
78. Kenya Statistical Abstract 1965 Table 140 (a)
79. For a well documented Tanganyikan example, see Guilleband,
The Sisal Industry in Tanganyika.
80. Meeting of the East African Ministers for Labour, Kampala, 20th
August, 1962.
81. Tripartite Labour Conference of East Africa, Dar es Salaam, 15th
November, 1962.
82. See earlier p. 4
308
 arrangements in Kenyan industrial relations is likely to continue.
Furthermore Government, itself the biggest employer of labour, cannot
afford to allow wages and conditions in private industry to race ahead
compelling wages and conditions in government service to follow
suit. While private employers may reduce their work force, increase
their capital investment, and in various other ways rationalise their
labour costs, on a national level the social problems of rising wages
cannot be ignored.

VI. BACKGROUND AND DEVELOPMENT OF COTU(K).

Trade Unions in Kenya have a history of political activism. In
the late 1940s the Kenya Labour Department reported that there were
"only some half-dozen trade unions not one of which was functioning
as a trade union should . . The African found it difficult to grasp
that a trade union was not a political weapon"". The development
of a national trade union federation in 1950 appears temporarily to
have taken the trade union focus out of the political arena". However
the arrival of the emergency and the ban on all political organisations
left the Kenya Federation of Labour as the only unoutlawed territorial
organisation of Kenyans. As Berg and Butler point out ". . . it
might be claimed that in its early years the federation was a political
movement in disguise"". The KFL survived the Emergency although
more than once threat of a ban on its activities was evident".
Tom Mboya, the KFL's General Secretary, later ascribed the Govern-
ment's reticence in imposing a ban to the existence of a close allegiance
between the KFL and the ICFTU'. He himself describes the pre-
independence political role of trade unionism : "Most of us in the
trade unions felt that the movement must identify itself with the
nationalist cause. If it fails to do this, it runs the risk of being
accused of becoming an imperialist agency. A number of trade
unionists who were not sensitive to this fact and concentrated only on
industrial relations suffered this fate"".
In 1960 KANU was formed as the leading political party in
Kenya; Tom Mboya was on the committee which drafted its constitu-
tion. The link between the political party and the union movement
was thus continued in a very real way by his role in the leadership of
both. Some hostility to his leadership was evident by this time since
Mboya was accused of too great an orientation towards the United

83. Labour Department Annual Report 1947

84. Labour Department Annual Reports 1952 and 1953
85. Political Parties and National Integration in Tropical Africa, edited by
J. S. Coleman. Chapter on Trade Unions by Berg and Butler, p. 347.
86. Labour Department Annual Report 1955 - The Department deplored
KFL's entry into Kenya politics.
87. Tom Mboya, Freedom and After, p. 196
88. Ibid p. 195.
89. East African Standard 20.4.64
90. Reporter Nairobi 8.9.64
91. East African Standard 16.11.64
92. Trade Unions Ordinance Cap 233 s. 16 (d)
93. KAWC was registered on 10.8.65, Gazette Notice 2995
309
States. It was this dispute as to Eastern and Western alignment which
finally culminated in a split in the KFL and indirectly in the 1965
creation of COTU. Akumu, Mak Anyengo and others challenged
Senator Lubembe's leadership of KFL, in 1964, on the grounds that
there should be an end to ICFTU affiliations. In April, 1964, they were
expelled from the Federation'. Mak Anyengo declared that money
was being "poured into the country" by the ICFTU and Kenyan
trade unions should affiliate to AATUF". KFL retaliated with the
resolution that AATUF was "a baby of Ghana impregnated by the
WFTU, which belonged to the Communist block". The three expelled
unionists applied in 1965 to the Registrar General to register a new
federation of trade unions, the KAWC, with six member unions. The
registration was opposed by the KFL on the ground that it was already
representing the same interests as those which the applicants wished
to protect" but the opposition was unsuccessful. KAWC was regis-
tered 93 and became affiliated to the AATUF.
The constant disruption in the trade union movement and the
competition for members between KFL and KAWC led to the
appointment, by President Kenyatta, of a Ministerial Committee on
trade unionism". The Committee made various recommendations :
the immediate deregistration of KFL and KAWC and the formation
of "a new workers' organisation. . to be known as COTU" was foremost
amongst them. They advised that the Attorney General should prepare
a constitution for COTU incorporating the recommendations of the
Committee. The Committee's recommendations were fully accepted by
the President in a public speech. He said "I must make it quite clear
that the Committee's Report is not being issued for the purpose of
debate and further argument. . . The publication of this document
indicates the full acceptance of the recommendations in the Report
and a determination to put them into effect?"". COTU's constitution
was subsequently drafted and registered".
The legal status of COTU should thtrefore be merely that of an
independently registered trade union federation. Nevertheless if that
view is accepted, there have been a number of anomalies since its cre-
ation. Soon after COTU was created, the Minister of Labour used a
power under s 36 of the Trade Disputes Act, to make an order requiring
employers to deduct union dues from wages and pay a "specified
proportion" to the trade union and the "remainder of the sums so
deducted" to a "specified federation", in the following manner : on
the 14th of December 1965 Orders were made requiring employers
to deduct union dues from the wages of members of a large number
of trade unions and to pay 75 per cent to the trade union and 25 per
cent to COTU"". These orders were made, as was clear from
subsequent correspondence, without consultation with COTU or the

94. 23.6.65, Republic of Kenya, The Policy on Trade Union Organisation

in Kenya.
95. The acceptance of the Presidential Ministerial Committees' recommen-
dations 1.9.65. Republic of Kenya. The Policy on Trade Union
Organisation in Kenya.
96. Kenya Gazette 25.1.66 Notice No. 320
97. Kenya Gazette 14.12.65. Notices No. 4544 - 4570
310
consent of the individual trade unions. Under the Constitution of
COTU, it is the Governing Council which determines amounts of
subscriptions, subject only to "such maximum amount as may from
time to time be determined in consultation with the Minister for
Labour"". Negotiations between COTU and the Minister followed
and, in January 1966, the previous Orders were revoked" and a new
list of Orders was issued fixing the proportion at 85 per cent for the
trade union and 15 per cent for COTU'. How far the member trade
unions actually applied for membership of COTU or how far they
were swept into COTU by their acquiescence in these Ministerial
Orders regarding check off is not clear. Certainly it is remarkable that
the original 75 per cent 25 per cent check-off orders were made by the
Minister before COTU became a registered federation which occurred
on 17th January 1966.
The check-off system was introduced in Kenya in 1965 as a legal
obligation of the employer; before that date check-off was administered
only by voluntary agreement. The Minister may make an order
"requiring" the employer to apply check-off' and indemnifying the
employer thereafter against employee demands to recover amounts
deducted -', and the employee against trade union demands for
payment of dues'. Failure to comply with a check off order by the
employer results in no legal sanctions. It is only where the General
Secretary of a trade union, subsequently to an order, serves notice on
an employer in respect of employees, "who are named . . . and who
have acknowledged by their signatures therein that they are members
of that trade unions", that the employer's failure to comply will
result in a criminal offence'. A strange gap in the Act seem to be
that, if the employer chooses to apply check-off after the Minister's
Order but before notice by the trade union General Secretary, he may
with impunity deduct dues from the wages of employees although
there may be no evidence of trade union membership such as the
employer would be obliged to seek in complying with a notice served
by the General Secretary under s 37. COTU is now making further
demands that there be compulsory check-off or closed-shop, justifying
their demands by the need to develop trade union investment'.
COTU is in many ways a weak trade union federation. Although
is is COTU which represents trade union interests on all national

98. COTU (K) constitution Rule No. 2 (h)

99. Act No. 15 of 1965 s. 36 (2)
1. Kenya Gazette 25.1.66 Notices No. 232 - 259
2. Act No. 15 of 1965 s. 36
3. Ibid s. 41 (1)
4. Ibid s. 41 (2)
5. Act No. 15 of 1965 ss. 37, 38
6. Ibid s. 40
7. Ibid s. 38
8. May-Day Message to the Workers of Kenya by the Secretary General
of COTU (K), Hon. C. K. Lubembe 1st May, 1967.
9. E.g. National Labour Advisory Board, General Wage Advisory Board,
the Tripartite Committee.
10. Berg and Butler (cited ante) p. 361.
11. Act No. 15 of 1965 s. 26.
311
boards and committees' and is therefore instrumental in the develop-
ment of national policy on labour relations, COTU has no strong
control over the activities of member unions. There is evidence that
the independence of the members of trade union federations in Kenya
stems as far back as the early days of the KFL 1' and the creation
of COTU has in no apparent way revised the trend. 15 per cent of
the country's voluntary trade union dues cannot give COTU a very
strong financial base. Furthermore, COTU has no control over the rule
books of member unions, by which the relationship between the indi-
vidual employee and the trade union movement is regulated. Union rule
books are subject only to the interpretation of the common law, re-
quiring that they be administered in accordance with natural justice
and that trade unionists may not act arbitrarily, abusing the terms and
meanings of the rules. There is only one statutory limitation on the
contents of the union rule book and that is a section of the Trade
Disputes Act prohibiting expulsion from the union or any other
union penalty for non-participation in unlawful strikes".
Member trade unions have autonomy in realms of local policy,
relations with management and use of their own finances, of which
they yield only 15 per cent to COTU. COTU has rarely appeared on
behalf of any trade union in the Industrial Court or even before the Tri-
partite Committee. The Federation has no constitutional capacity to inter-
vene in a collective bargaining dispute unless invited to do so by the trade
union member concerned : ". . . nothing herein contained bhall
empower the committee (i.e. The Industrial Relations Committee of
COTU) to take cognizance of any dispute between an employer and
an individual member of a trade union which is a member of COTU
unless such dispute is reported by the member union itself"". The
general power of COTU outlined under "objects" includes assistance
in settling disputes between members of trade unions and their employ-
ers as hereinafter provided in these rules"".
Only where strike action is envisaged does the control by COTU
seem to be more severely applied. The union is obliged to report
contemplated strike action and is required to include in the report
an affirmation that the negotiating machinery is exhausted, no settle-
ment has been reached through the I.R.C. of COTU, the dispute
has been notified in the Ministry of Labour without settlement, and
the strike has been voted upon in accordance with union rules.
Failure to carry out this procedure may result in disciplinary action by
COTU. These theoretical requirements are extensive but it does
not seem that they have in fact been widely used or that members
have been disciplined for their failure to abide by them. Disciplinary
action by COTU includes loss of office or of a seat on the Governing
Council or of the right to vote". Fines or expulsions from the
Federation are not permitted by the Rules.

12. Constitution of COTU Rule No. 14 (c)

13. Ibid Rule No. 2 (d)
14. Constitution of COTU Rule No. 27
15. Ibid Rule No. 28
312
 Demarcation disputes must be referred to the I.R.C. of COTU'
and thus COTU inherits the demarcation jurisdiction of the FKE/
KFL Committees established under the Industrial Relations Charter.
An appeal lies from the I.R.C. to the Executive Council and failure
to abide by the latter's decisions will result in the application of
disciplinary sanctions.
How does COTU function in influencing national policy on labour
relations? Policy questions and the ultimate authority in COTU
belong in the Governing Council", which embraces the Executive
Council and the executives of all member unionss. The Executive
of COTU is responsible for the management of the Federation's
affairs" and the Secretary General, Deputy Secretary General and
Assistant Secretary General are the Chief Executive Officers. These
latter are appointed by the President from a panel of nominations
submitted by the Governing Council". It is at this juncture that the
question arises as to how great is the element of state control over
COTU's policy decisions. While it is evident that the final discre-
tionary power to appoint Kenya's trade union leader is an important
Presidential power, it does not necessarily follow that control of that
leader's activities can be sustained. The Secretary General, Senator
Lubembe, may wish to retain the confidence of the President but he
must also have the confidence of the trade union movement if he is
to influence its development. The demands of the President and the
trade unions do not always run parallel.
Trade union activity in Kenya has been largely carried on in the
field of wages, since Independence. As has already been indicated, this
is a field in which the Government of a developing economy is
peculiarly sensitive. The creation of COTU leaves trade unions free
to pursue their own bargaining policies; indirectly the Minister's
power to declare a strike illegal may harness the drive for higher
wages. COTU itself states in its wages policy "The ruling party and
the Government have declared their intention to work for a high wage
economy. COTU will constantly press for this policy to be borne in
mind at all times. . . There is still some tendency to keep wages down
in order to attract investors to Kenya. While we wish to attract capital
to our country this should be on the basis of having a skilled,
efficient and responsible labour force and not on the basis of the
cheapness of labour"".
The question of international affiliations, which was the apparent
cause of the split in the KFL, has found not a legal but a de facto
solution. COTU states "The Government and the people of Kenya
are committed to follow an absolute policy of non-alignment in inter-
national affairs COTU and its affiliate trade unions fully support this

16. Ibid Rule No. 14 (b)

17. Ibid Rule No. 4 (a) and (d), Rule No. 22 (vi)
18. Ibid Rule No. 4 (c)
19. Ibid Rule No. 6 (a) and see also Rules No. 10 and 11.
20. Ibid Rule No. 5 (d)
21. COTU(K) Statement of Policy (Nairobi), 8 November, 1966
Paragraph 12.
313
policy. COTU is therefore prepared to affiliate with any genuinely
independent African continental organisation of trade unions"".
AATUF evidently is not considered by COTU to fall into this
latter category: ". . . I bear in mind the uncalled-for and dirty
AATUF activities in Africa, instigated by some foreign trade union
organisations"'. Membership of international trade union organisation
by trade unions, members of COTU, is not however prohibited by
law, since the President's speech accepting the recommendation that
it should be so was itself not a legislative document; the constitution
of COTU too remains silent on this question, so that a member union
would not be subject to discipline if it formed international affiliations.
The creation of COTU has resulted in the elimination of certain
personality conflicts from the political arena. Attitudes to international
affiliation have consequently been modified. On the internal labour
relations scene little has been changed in the conduct of collective
bargaining, the policy of wages or the autonomy of individual
trade unions.

CONCLUSION
The colonial period has left a number of legacies to the Kenyan
labour force. Work psychology and the attitudes of both employers
and employees to employment and to productivity can be traced back
to the colonial labour methods. The distribution of the population and
the rural surplus, which seeks work and contributes to the unemploy-
ment problem, can be attributed to colonial land policies and the
restrictions during the Emergency. The legal concept of the employment
relationship is still largely governed by regulations introduced before
Independence and many of them have their origins at the beginning
of the 20th century. Thus the law still sees the employment relation-
ship as a paternalistic one, wherein the employer must provide the
minimum needs for subsistence and not only a wage. Indeed develop-
ment of urban housing has not been sufficient to facilitate a new
approach. Furthermore various anomalous penal provisions and
recruitment provisions remain on the statute book. Some of these
provisions are entirely defunct since the practices they regulated
have disappeared; others could still be used by employers to the
detriment of their employees.
Collective bargaining was developed in the later years of the colonial
era and was encouraged by the British Trade Union Congress and
by the ICFTU. Ideas of collective bargaining were supported by
the liberals, who wanted to see the development of better conditions
for the workers, and, initially, by the administration who hoped it
would be a non-political outlet for expressions of discontent. The
concept of collective bargaining has been maintained in Kenya since
Independence. Government policy has been concerned with the en-

22. Ibid para. 22

23. May-Day Message. Hon. C. K. Lubembe 1st May, 1967
The Sisal Industry in Tanganyika.
314
couragement of investment from abroad; it has not been concerned
to centralize control of prices or incomes. Trade unions have been
left free to bargain for better conditions of employment; the Govern-
ment has provided employers and employees with a further forum for
their debate - the Industrial Court. This Industrial Court has no
terms of reference beyond the hearing of the evidence of the parties
and the making of an award in the dispute before it. Undirected by
national policy, the Industrial Court can only make compromises
in the bargaining positions already fought for by the parties when
they appear before it. How suitable can this laisser faire regulation
of wages be to a developing economy?
Certainly the Government has not been entirely laisser faire in its
attitude to industrial disputes. The concept of collective bargaining
has been preserved but the Government has nevertheless intervened
strongly to prohibit various emanations of collective bargaining. Wher-
ever the Government has seen a political threat in industrial relations
developments it has used all means in its power to control those
developments. Hence the Tripartite Agreement was introduced to
avert the threat of urban unemployment; the Minister was given the
power to declare certain strikes unlawful and used that power where
a strike seemed to present a political problem, as for instance the
teachers' strike; the competitive trade union federations, the KFL and
the KAWC, were abolished as a result of Government pressure and
replaced by COTU. It may well be that if rising wages threaten
foreign investment the Government will be forced to reassess. also
the very collective bargaining basis which determines the wages
structure. In the meantime the employers seem not dissatisfied with the
wage increases and there is every probability that there is still a
sufficient margin for bargaining to continue. Employers should indeed
be satisfied with current developments : it is generally trade union
activity which leads to political unrest and not management activity.
Control by Government of "political unrest" therefore weights the
balance of collective bargaining in the employers' favour. It is conson-
ant with the Government's desire to encourage foreign investment that
excesses of trade union activity should be controlled. However
Kenya's employees have neither the psychological motivation of
workers' management and state ownership for acceptance of Govern-
ment control nor have they the freedom to use all the industrial
weapons available to fight out trade disputes with their employers.

315