Forum for Good Governance and Human Rights v Public Service Commission & 4 others; Central Organization of Trade Unions (COTU-K) & 2 others (Interested Parties) (Petition E058 of 2023) [2025] KEELRC 83 (KLR)
The bottom line
#A Kenyan court struck down agency fee deductions for civil servants but confirmed minority unions can still represent workers.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petitioner has locus standi to institute this petition
- 2.Whether this court has jurisdiction to handle this petition
- 3.Whether labour officers, DOSH officers and other civil servants and government officers performing statutory and quasi-judicial functions under the Labour Relations Act should be subjected to deduction of agency fees
- 4.Whether minority trade unions have constitutional and statutory mandate to represent employees as union officials
- 5.Whether section 49 of the Labour Relations Act 2007 offends the rights of non-union members who are forced to pay agency fees yet are also on management cadre being in JG 'P' and below
- 6.Whether operation of section 49 of the Labour Relations Act 2007 should be suspended until amended or until rules are in place
- 7.Whether courts should impose provisions in collective agreements of the parties
- 8.Whether the respondents and interested parties have breached the Constitution as submitted by the petitioner
Key legal issues
#Locus standi of the petitioner
The petitioner, an NGO acting in the public interest, had standing under article 22 of the Constitution.
The court relied on article 22(1) and (2), which permits proceedings by any person acting in their own interest, on behalf of others, in the interest of a group, or in the public interest. The submission that the petitioner lacked locus could not stand against this broad constitutional grant.
Jurisdiction of the ELRC over constitutional questions
The ELRC has jurisdiction, including to determine constitutionality of statutes central to employer-employee disputes.
The court invoked article 162(2) establishing a court of High Court status for employment and labour relations, cited USIU v AG, and noted the Supreme Court's holding in Petition No E004 of 2023 that the ELRC may determine constitutionality of a statute at the centre of an employer-employee dispute.
Agency fee deductions from officers performing statutory/quasi-judicial functions
Such officers (Labour Officers, DOSH officers, Registrars) should not be subjected to agency fees or union membership without clear rules, as their impartiality would be compromised.
The court reasoned that officers performing conciliation and inspection duties would face conflicts of interest if unionised; compelling them to pay agency fees for abstaining from union membership defeats the very purpose of their non-membership.
Minority unions' representative mandate
The size of a union does not determine its ability to represent its members; minority unions may represent their members.
The court anchored its reasoning on article 41(2)(c) and 41(4) of the Constitution, holding that requiring a simple majority before representation would breach the right of an employee to join a union of their choice.
Constitutionality of section 49 of the Labour Relations Act and Legal Notice No 19
Section 49 itself is not unconstitutional, but Legal Notice No 19 of February 6, 2022 was void for failure to comply with section 49(2)(b), and enforcement requires rules under section 83.
The court found section 49 not couched in mandatory terms and requiring parameters via regulations under section 83. Section 49(2)(b) mandatorily requires a list of affected employees, which the respondents failed to supply, rendering the Legal Notice illegal, null and void.
Judicial imposition of provisions in collective agreements
Courts should not impose provisions such as exit clauses in collective agreements; mechanisms exist under section 54(5).
Under article 41 unions manage their own affairs; imposing provisions would interfere with collective bargaining rights and descend into an arena not the court's own.
Legal principles established
#- Any person may institute a petition alleging infringement of rights under article 22; locus standi in constitutional petitions is broad.
- The ELRC has jurisdiction to determine constitutionality of statutes where the statute lies at the centre of an employer-employee dispute.
- Section 49 of the Labour Relations Act is not unconstitutional but must be enforced through rules made under section 83, and compliance with section 49(2)(b) is mandatory.
- A legal notice issued without the mandatory list of affected employees under section 49(2)(b) of the Labour Relations Act is null and void.
Court orders
#- 1.An order of declaration that Labour Officers, Occupational and Safety Officers, Registrars and any such officers performing duties in relation to enforcement of labour and employment are not to be subjected to deduction of agency fees/membership of the 5th respondent without clear rules and regulations being made under the Labour Relations Act
- 2.An order of injunction restraining/prohibiting deduction of membership/agency fees from officers of the 2nd respondent performing statutory duties which require them to remain independent and impartial
- 3.Legal Notice No 19 published on February 6, 2022 declared unconstitutional, null and void and revoked
- 4.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) and (3) of the Constitution of Kenya, 2010; article 22; section 12 of the Industrial Court Act, 2011
Relief refused
#Declaration that no trade union which does not enjoy simple majority should enter collective agreement on behalf of all unionizable employees
The court held that the size of a union does not determine its representative mandate, and insisting otherwise would breach employees' freedom of association
Declaration that a Recognition Agreement has no effect of law when the union entering a collective agreement did not enjoy simple majority
Not granted; the court found section 49 constitutional and minority unions capable of representing members
Injunction suspending operation of section 49 of the Labour Relations Act until amendments or regulations are in place
Section 49 was found not unconstitutional; it can be applied with parameters under rules made under section 83
Prayer for exit clauses in recognition agreements allowing revocation where a union loses majority
Courts should not impose provisions in collective agreements; mechanisms already exist under section 54(5)
Certiorari to quash section 54(6) of the Labour Relations Act
Section 54(6) was not found unconstitutional; the court declined to interfere with the statutory framework
Costs
This being a petition affecting a wide range of employees and being of public interest each party will bear its own costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
1. An order or declaration do issue confirming that Labour Oficers, Occupational and Safety Oficers, Registrars and any such oficers performing duties in relation to enforcement of labour and employment are not to be subjected to deduction of agency fees/membership of the 5th respondent without clear rules and regulations being made under the Labour Relations Act.
3. Legal notice No 19 published on February 6, 2022 is herein declared unconstitutional null and void and hereby revoked.
4. This being a petition afiecting a wide range of employees and being of public interest each party will bear its own costs.
My understanding of the law is that the size of a union does not determine whether or not they can represent its members as union oficials.
It is therefore my finding that section 49 of the labour relations act does not ofiend the rights of non-union members who pay agency fees.
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on March 15, 2020 and subsequent directions of April 21, 2020 that judgments and rulings shall be delivered through video conferencing or via email.
Issues in the judgment
#Internal inconsistency in the dates of Legal Notice No 19 - described variously as dated January 26, 2022, October 26, 2022 and January 26, 2012 in different passages
Inconsistency between the prayers on union membership for statutory officers - prayer 1 asks for a declaration that such officers 'should be eligible members' while submissions ask they 'should not be legible members'
Inconsistent references to the challenged provision - prayers alternatively cite section 54(6) and section 56(6) of the Labour Relations Act
Inconsistency on whether the Government-UKCS recognition agreement was signed on September 19, 2023 or earlier, given the CBA was signed June 27, 2017
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Forum for Good Governance and Human Rights v Public Service Commission & 4 others; Central Organization of Trade Unions (COTU-K) & 2 others (Interested Parties) (Petition E058 of 2023) [2025] KEELRC 83 (KLR)", Case Analysis (2025). Petition dated March 17, 2023 (ELRC Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/83/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.