Kenya Union of Roads and Contractors and Civil Engineering Workers v Cale Infrastructure Construction Limited

ii. an Order directing the Respondent to pay all unremitted union dues from March 2021 to date due to the Claimant’s members from its own account; iii. Spent; iv. Spent; v. Costs of this Claim and interest thereon at Court rates. vi. Any other relief that this Court may deem just and t to grant. 4. In response, the Rrespondent’s case is that it is engaged in the construction, maintenance and repair of the Nairobi Expressway Project and that employees were engaged on project-specic contracts depending on the workload and timelines of the various sections of the project. 5. With regard to the dispute on union dues, the Respondent acknowledges that the Claimant sought recognition to represent some employees. Following prior litigation on the issue, it commenced deducting and remitting union dues for the 8 employees whose membership was known to it. There was no service of check-o forms or a list of the other alleged union members. The respondent only became aware of the alleged membership of those employees upon being served with the present claim. Most of the employees had by then left its employment, making further deductions impossible. 6. The claim was disposed of by way of written submissions. The Court issued directions to that eect on 9 December 2025, and the parties duly led their respective submissions. Determination 7. On the pleadings, the documents led by the parties and the written submissions on record, the claim relating to the alleged unfair termination of employment of the grievant having been struck out for incompetence by the Ruling of this Court delivered on 5 June 2025, the only issue for determination is whether the Claimant has proved that the Respondent failed to deduct and remit union dues in accordance with section 48 of the LRA and whether the reliefs sought should issue. Section 48(2) of the LRA provides: (2) A trade union may, in the prescribed form, request the Minister to issue an order directing an employer of more than ve employees belonging to the union to— a) deduct trade union dues from the wages of its members; and b) pay monies so deducted— i. into a specied account of the trade union; or ii. in specied proportions into specied accounts of a trade union and a federation of trade unions. 8. Under section 48 of the LRA, upon the Minister’s Order, the employer who is served with check-o forms by employees who have voluntarily joined the union is under a legal duty to deduct and remit union dues to the subject union. Where an employer fails to comply with that obligation, it is in breach of the LRA. The trade union is entitled to recover from the employer the union dues that ought to have been deducted and remitted, as held in Kenya Concrete, Structural, Ceramic Tiles, Wood Plys and Interior Design Workers Union v Wanxin Investments Limited [2021] KEELRC 3895 (KLR). 9. The duty imposed upon an employer depends on proof that the statutory requirements have been complied with. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2229/eng@2026-07-31 2

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10. In this case, the Respondent does not dispute deducting and remitting union dues; the dispute concerns whether the Respondent was served with the check-o forms relating to the remaining 185 employees. 11. The Claimant, on one part, submitted that 193 employees voluntarily joined the union, executed check-o forms and that the same were served upon the Respondent. It is further submitted that, despite receipt of the check-o forms, the Respondent deducted and remitted union dues for only 8 employees, failing to remit dues for the remaining 185 employees. 12. The Respondent, on the other hand, disputes having received the alleged check-o forms relating to the remaining 185 employees and maintains that it only became aware of their alleged membership upon being served with this suit. It remitted union dues for the 8 employees whose membership was known to it and that there was no basis for making further deductions. The Respondent further argues that the Claimant failed to produce evidence demonstrating service of the check-o forms and consequently failed to discharge the burden of proof. 13. The Respondent submitted that in a claim founded upon section 48 of the LRA, the burden rests upon the trade union to demonstrate that the employer was served with the requisite Ministerial Order and duly executed check-o forms in respect of the employees for whom deductions are sought. Such proof could have been by way of an acknowledgement stamp, dispatch register, certicate of posting, email correspondence or any other credible evidence demonstrating delivery of the check-o forms to the Respondent. 14. In this case, whereas the Claimant has exhibited check-o forms executed by employees, there is no evidence that the Respondent was served with all the prescribed documents in respect of the remaining 185 employees, as there is no acknowledgement stamp endorsed on the said forms or any other proof of service. The shop oor is uid and dynamic. 15. In Engineering Workers Union v Abyssinia Iron and Steel Limited [2025] KEELRC 47 (KLR), the court recognised that on any given day, there are dierent dynamics on the shop oor. Employees leave for various reasons; hence, there are constant changes. The claimant must hold on to these dynamics and act accordingly. 16. The respondent has admitted to having an ongoing project for the Nairobi Expressway. Dierent sections required employees. It is therefore reasonable to expect that, with ongoing construction dynamics and the project now complete, there would be daily or weekly changes in the need for various employees. 17. For the claimant, constant updates of its members' lists were imperative. 18. Further, an order compelling payment of alleged historical union dues from the employer's own account can only be issued where there is proof that the employer had already been placed under the statutory obligation to deduct and remit union dues and thereafter failed to comply. In the present case, such proof has not been suciently established on a balance of probabilities. The oor dynamics cannot support such an assertion. 19. The claimant must return to the shop oor and ascertain the number of its members. 20. Accordingly, the orders sought are without merit, and the claim is hereby dismissed. However, to maintain industrial peace, upon service of a Ministerial Order issued under Section 48 of the Labour https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2229/eng@2026-07-31 3

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Relations Act together with duly executed check-o forms in respect of the Respondent's unionisable employees, the Respondent shall commence deduction and remittance of union dues. Each party shall bear its costs. Orders accordingly. DELIVERED IN OPEN COURT THIS 31ST DAY OF JULY 2026 M. MBARŨ JUDGE In the presence of: Court Assistant: Nelson Kemboi ………………………… and ………………… https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2229/eng@2026-07-31 4

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