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ELRCDismissedNot stated in the judgment text· [2025] KEELRC 43 (KLR)

Kenya Union of Road Contractors & Civil Engineering Workers v Pride Enterprises Limited (Cause E078 of 2024) [2025] KEELRC 43 (KLR)

Employment and Labour Relations Court
23 January 2025
3,515 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Claimant union sued the Respondent, a supplier of road construction material such as bitumen, seeking orders compelling it to deduct and remit union dues of 23 employees allegedly recruited in November 2023 and February 2024, together with unremitted dues and costs. The Respondent denied any recognition agreement, disputed the employees' membership, and contended the Claimant was not the proper union for the sector. At hearing the Claimant produced no witness, the case proceeding on documents and written submissions. The court framed three issues: the effect of the missing witness statement, whether a recognition agreement is a prerequisite to deduction of dues, and the sustainability of the claim. It held that absence of oral testimony was not fatal given the documentary evidence, and that a recognition agreement is unnecessary except for collective bargaining under Section 54 of the Labour Relations Act, following Ndolo J and the Court of Appeal in Modern Soap Factory and Lochab Brothers. It also held that an employer plays no role in choosing the union representing its employees, that right being protected by Articles 41(2) and 38 of the Constitution. However, deduction of dues rests on a ministerial order and service of Form S signed by employees. On the facts, the Claimant failed to prove membership, failed to prove service of Gazette Notice No. 159 of 29th June 2021 and Form S, and one listed employee had not signed the check-off form. The suit was dismissed with no orders as to costs. The court also lamented that conciliation was not given a proper chance.

Key legal issues

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01

Effect of non-availment of a witness statement by the Claimant

Holding

Not fatal, as the Claimant had availed documentary evidence establishing some allegations, but the absence of testimony weakened its case on contested facts.

Reasoning

Pleadings are not evidence; they set the outer limits of a case. Here the Claimant filed documentary evidence including the request to recruit members and the demand letters, so oral testimony was not indispensable. However, on the contested question of membership the documents were insufficient, and the Secretary General who signed all documents did not testify to affirm them.

p. 4
02

Whether a recognition agreement is necessary for deduction of union dues

Holding

No; recognition is only a prerequisite for collective bargaining under Section 54 of the Labour Relations Act, not for recruitment, representation or requesting deduction of dues.

Reasoning

Section 54(2) ties recognition to collective bargaining where a union represents a simple majority of unionisable employees. Authorities of Ndolo J and Rika J, affirmed by the Court of Appeal, establish no nexus between recognition and representation. A union may therefore recruit members and represent them without recognition, and recognition was not necessary for the Claimant to request deduction of dues.

p. 5
03

Whether the Claimant's demand for union dues was sustainable

Holding

No; the Claimant failed to prove employee membership and failed to prove service of Gazette Notice No. 159 and Form S, the foundation of deduction and remission of dues.

Reasoning

Section 48 of the Labour Relations Act requires a ministerial order and service of Form S signed by employees. Membership was contested and had to be proved by evidence such as membership receipts or a register. The letter conveying the Gazette Notice bore no acknowledgment, and Cheruiyot Rotich did not sign the check-off form. The union denied itself the chance to tell its story convincingly.

p. 8
04

Whether the employer can determine which union represents its employees

Holding

No; the choice of union belongs to the workers under Articles 41(2) and 38 of the Constitution, subject to the union's constitution.

Reasoning

The right to form, join or participate in a trade union is constitutional. Freedom of association under Article 38 includes the right to join an association, and workers decide which union to join. The employer's role is to conclude a recognition agreement once the threshold is met, deduct and remit dues, and forward resignation letters. The Respondent proposed no alternative union.

p. 7
05

Conciliation as a dispute resolution mechanism

Holding

The court noted with regret that neither party accorded conciliation a proper chance, only one joint meeting having taken place.

Reasoning

Conciliation is a constitutionally mandated dispute resolution mechanism binding on the parties. Only one joint meeting took place on 16th May 2024; no minutes were availed and the conciliator did not explain the lack of headway or make recommendations. The conciliation letter left more questions than answers.

p. 7

Legal principles established

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  • A recognition agreement is not a prerequisite to a trade union recruiting members and representing them; it is only necessary for collective bargaining under Section 54 of the Labour Relations Act.
  • Deduction and remittance of union dues is founded on a ministerial order and service of Form S signed by the employees.
  • Whether an employee is a member of a union is a question of fact requiring evidence.
  • It is not the remit of an employer to determine which union should represent its unionisable employees.
  • It is the trade union, not the employee, that serves Form S upon the employer under Section 48(3) of the Labour Relations Act.

Court orders

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  1. 1.Dismissal of the Claimant's suit with no orders as to costs.
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade disputes (Labour Relations Act); Articles 41 and 36 of the Constitution of Kenya relied on by the Claimant

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Road Contractors & Civil Engineering Workers v Pride Enterprises Limited (Cause E078 of 2024) [2025] KEELRC 43 (KLR)", Case Analysis (2025). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/43/eng@2025-01-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.