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ELRCDismissedCause No E060 of 2024· [2025] KEELRC 2090 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Laxmi Hardware Limited (Cause E060 of 2024) [2025] KEELRC 2090 (KLR)

Employment and Labour Relations Court
16 July 2025
JGJacob Gakeri
1,665 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a union's case for lack of proof that the workers belonged to its members or that documents were ever served on the employer.

What this practically means

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Executive summary

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The claimant union sued the respondent employer in July 2024, alleging it had recruited 16 of 17 unionisable employees (94%) who signed check-off forms, yet the respondent refused to sign a Recognition Agreement or deduct and remit union dues. It sought a declaration compelling execution of a Recognition Agreement, an order for collective bargaining within 30 days, an order for deduction and remittance of dues, and costs. The respondent, through its director Dhansukhbhai Raujibhai Varsani, denied having any employees, asserting that the workers at its facility were employed by Syntamex Ventures Ltd, and maintained it was wrongly enjoined and never served with the letters or draft agreement. The claimant's witness admitted on cross-examination that he had no evidence proving the named individuals were the respondent's employees, nor proof of service of the letters. The court framed two issues: whether the claimant proved its case and whether it was entitled to the reliefs. Applying Sections 7, 8 and 107 of the Evidence Act, the court held that the burden lay on the claimant and that it had failed to produce contracts, payslips, membership receipts or an affidavit of service. The respondent's documentary evidence that it had no employees appeared credible, and its failure to adduce oral evidence did not lighten the claimant's burden. The suit was dismissed with each party bearing its own costs.

Key legal issues

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01

Burden and standard of proof of union membership and employment relationship

Holding

The claimant failed to prove that the 16 persons named on the check-off forms were employees of the respondent or members of the union

Reasoning

The claimant alleged 94% recruitment but its witness admitted on cross-examination that he had no evidence, such as contracts, payslips, receipts or membership cards, proving the named persons were the respondent's employees or union members. The respondent's documentary evidence that workers were employed by Systamex Ventures Ltd appeared credible. Section 107 of the Evidence Act placed the burden on the claimant.

p. 3
02

Proof of service of the check-off forms, letters and draft Recognition Agreement

Holding

Service was not proved; no affidavit of service was filed and the witness admitted there was no evidence of receipt

Reasoning

The court emphasized that service informs the other party of the case it must confront, and an affidavit of service with evidence of acknowledgement is required. The claimant produced no affidavit of service, so the obligation to deduct dues could not arise.

p. 3

Legal principles established

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  • He who alleges bears the burden of proof; the party who would fail if no evidence were given bears the burden, and the failure of the other side to adduce oral evidence does not diminish that duty
  • Service of documents is foundational to the adversarial system and should be demonstrated by an affidavit of service

Court orders

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  1. 1.The claimant's suit against the respondent is dismissed
  2. 2.Parties shall bear own costs

Authorities

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Legislation

  • Evidence ActSections 7, 8, 107
  • Labour Relations ActSection 48
  • Employment ActSection 19
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 48, 159(2)(d)

Cases cited (6)

  • Jethwa V Shah t/a Supreme Styles
    [1989] eKLR
  • Wiliam Kabogo Gitau V George Thuo & 2 Others
    [2010] eKLR
  • Mary Wambui Kabuguo V Kenya Bus Services Ltd
    [1977] eKLR
  • Nicholus Kipkemoi Korir V Hatari Security Guards Ltd
    [2016] eKLR
  • Kenya Union of Commercial Food & Allied Workers V Kenya Credit Traders Ltd
    [2023] KEELRC 2403 (KLR)
  • Gulf Fabricators V County Government of Siaya
    [2020] eKLR
Jurisdiction invoked
Jurisdiction not expressly invoked in the judgment; matter is a labour dispute under the court's employment and labour relations jurisdiction (Labour Relations Act and Employment Act provisions discussed)

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 Commercial, Food and Allied Workers v Laxmi Hardware Limited (Cause E060 of 2024) [2025] KEELRC 2090 (KLR)", Case Analysis (2025). Cause No E060 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2090/eng@2025-07-16

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