Banking Insurance & Finance Union [Kenya] v Fortune Sacco Society Limited (Cause E783 of 2023) [2025] KEELRC 1184 (KLR)

The parties had a subsisting recognition agreement and collective bargaining structures not frustrated by operation of the law, and a ministerial order (gazette notice number 516 of 2009) authorized deductions. However, under Section 48para 6 an employer may not deduct dues from an Employee who has notified resignation. The Respondent exhibited resignation letters, and no evidence from the Employees denied resignation or compulsion. Ordering deduction of arrears would therefore risk an unlawful deduction under Section 19 of the Employment Act.

The recognition agreement of 4th October 2002 and the CBA covering 1st January 2020 to 31st December 2023 remained in place. There was no rival trade union claiming representation, and the Claimant had not been de-recognized by court order or National Labour Board directive. Fresh recruitment in 2020 was to sustain numbers, not to open a fresh recognition dispute. The recognition agreement thus survived the individual resignations.

The court explained that free-riding is not encouraged and that the trade union must be compensated by non-members as well as members. Resigned employees cannot shed burdensome dues while enjoying benefits crafted by the union. However, the Claimant pleaded only trade union dues, and the ministerial order in gazette notice number 516 of 2009 relates to dues, not agency fees. Without a ministerial order under Section 49para 1 on agency fees, the court could not direct such deductions, though a fresh claim may be filed.

The Claimant alleged that the Respondent threatened to dismiss or fail to renew contracts of recruited Employees. The court held that such complaints needed direct viva voce or affidavit evidence from the affected Employees themselves, which was not placed on record. The claim on this head therefore failed as unproven.