Kenya Building Construction Employees Union v Vaghjiyan Enterprises Ltd (Employment and Labour Relations Cause 286 of 2022) [2023] KEELRC 2805 (KLR)
The bottom line
#An employer cannot sack workers for refusing contracts that pay less than the law's minimum wages; unions can represent members without a recognition agreement.
What this practically means
#Executive summary
#Key legal issues
#Locus of a union without a recognition agreement to represent grievants
The Claimant union has locus because the Respondent operates in the building and construction sector and the Grievants proved membership by membership cards; recognition is not a precondition for representation.
Article 41 of the Constitution and sections 4 and 33 of the Labour Relations Act give every employee the right to join a union of their choice, with qualification being the sector in which the employer operates plus payment of subscriptions. Union membership is distinct from recognition and collective bargaining, which arise under sections 54 and 57 only once a simple majority is achieved. The Respondent's letterheads describe it as civil and general building contractors, placing it in the Claimant's sector, and membership cards proved the Grievants' membership. The authorities relied on by the Respondent were distinguishable for want of proof of membership.
Validity of termination notices issued for refusing to sign inferior contracts
There was no valid reason to terminate because the contracts the Grievants declined to sign offended statutory minimum terms under the wages order.
Section 26 of the Employment Act and section 48 of the Labour Institutions Act make wages-order minima mandatory terms that cannot be varied by agreement. The Respondent did not deny that the new contracts offered less than the Building and Construction Industry (Wages) Order, 2012 in salary, leave and sick pay. Further, section 46 of the Employment Act forbids termination for raising genuine complaints. Declining to execute an unlawful contract was therefore a genuine complaint and not a valid reason for termination.
Legal principles established
#- Union representation turns on the sector in which the employer operates, not on the particular role the employee performs.
- A recognition agreement and a collective bargaining agreement are not prerequisites for a trade union to represent its members.
- An employer may not contract out of the minimum terms in a wages order; terms less favourable are substituted by the statutory minimum.
- An employer may not terminate employment for pursuing genuine complaints about statutory entitlements.
Court orders
#- 1.An order suppressing the notice of termination of the 2 Grievants dated 19th April 2022
- 2.An order directing the Respondent to review and/or amend the contracts of employment dated 1st March to align with the minimum legal requirements
- 3.An order directing the Respondent to first discharge the previous oral contracts it had with the 2 Grievants, or in the alternative, directing the Respondent to incorporate the duration served under the oral contract into the new employment contracts
- 4.The Respondent to pay the Claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (trade union representation of employees)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Plantation & Agricultural Workers Union v Rea Vipingo Limited & another (Cause E008 of 2025) [2025] KEELRC 2098 (KLR)[2025] KEELRC 2098 (KLR)17 Jul 2025applied
Cite this brief
#Cite this brief
Caselaw, "Kenya Building Construction Employees Union v Vaghjiyan Enterprises Ltd (Employment and Labour Relations Cause 286 of 2022) [2023] KEELRC 2805 (KLR)", Case Analysis (2023). Memorandum of Claim dated 5th May 2022, filed 6th May 2022 (ELRC, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2805/eng@2023-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.