Kenya Petroleum Oil Workers Union v Stratostaff East Africa Ltd

4. The Claimant contends that on 15th November 2021, it served the Respondent with the full list of the 142 employees it had recruited as its (the Claimant’s) members. It contends that despite this, the Respondent has refused to enter into a Recognition Agreement with it. 5. The Claimant further contends that despite the Respondent having been served with the check-o form for the 142 employees, it (the Respondent) has refused to commence deduction of trade union dues from the said employees for purposes of remittance thereof to the Claimant. The Claimant avers that the Respondent’s conduct has disadvantaged it (the Claimant) and its members and violated their rights of freedom of association and fair labour practices. 6. The Claimant contends that it has tried to resolve the dispute between the parties through the available dispute resolution mechanisms including conciliation but to no avail. Hence the decision to approach the court. 7. The Claimant further asserts that the Respondent has been threatening to victimize and take disciplinary action against the aected employees on account of their decision to take up trade union membership. It avers that unless the court intervenes to protect the said employees, the Respondent is likely to victimize them because of the current recognition dispute between the parties. 8. The Claimant thus prays for the following reliefs:- 9. a. A declaration that the Respondent’s actions have infringed its (the Claimant’s) members’ right to fair labour practices. b. An order for the Respondent to commence deduction and remittance of trade union dues from all unionisable employees who have acknowledged membership with the Claimant. c. An order of injunction to restrain the Respondent from victimizing or coercing or harassing or terminating the contracts of service of employees who are members of the Claimant on account of their trade union membership. d. An order to compel the Respondent to enter into a Recognition Agreement with the Claimant. The Respondent has opposed the claim. It led a Statement of Response to state as follows:a. That it is an outsourcing company which hires employees who are then placed with other organizations which require their services. b. That the nature of outsourcing and the classication and treatment of outsourced workers cannot be viewed from the same wavelength as a standard labour contract due to its (outsourcing) tripartite nature. c. That it (the Respondent) deploys its employees to dierent industries and cannot therefore conclude a Recognition Agreement with the Claimant as this will be contrary to its (the Respondent’s) multi-sectoral nature. d. That although the Claimant has made requests for recognition, the parties have considered and disagreed on this request due to the peculiarities of outsourcing of manpower business which the Respondent is engaged in. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2523/eng@2026-09-24 2

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e. That as an outsourcing company, it (the Respondent) can only legitimately enter into a Recognition Agreement with a trade union which is registered to represent outsourced workers and not sector specic trade unions. f. That it (the Respondent) has acceded to requests by individual employees to deduct and remit their trade union contributions to the Claimant. However, it has not eectuated these deductions where employees on the check-o forms have contested their obligation to remit the dues. 10. During trial, the Claimant’s witness stated that the Claimant operates in the petroleum, oil and gas sector. He stated that the Claimant initially recruited 142 of the Respondent’s employees who work in the petroleum, oil and gas sector. He further stated that the Claimant subsequently recruited an additional 31 members from the Respondent’s sta in the sector. 11. The Claimant’s witness further stated that the Respondent has 211 employees in the petroleum, oil and gas sector. He however conceded that the Respondent has other employees working in other sectors. 12. The witness stated that the number of employees the Claimant has recruited from the Respondent’s workforce represents more than 50 percent of the 211 employees the Respondent has in the petroleum, oil and gas sector. When asked how the Claimant came up with this data, the witness stated that it (the Claimant) relied on information given to it by the employees. He conceded that the Claimant did not verify the data with the Respondent. 13. On remittance of trade union dues, the witness conceded that the Respondent has been remitting the dues for some of the employees. However, he contended that the remittances did not cover all employees who are members of the Claimant. 14. On victimization of employees who are the Claimant’s members, the witness stated that the Respondent had started to harass these employees. He referred to the proposal by the Respondent to declare some positions held by some of the employees redundant as proof of the victimization process. 15. On the part of the Respondent, the rst witness stated that the Respondent is a human resource company which is engaged in the business of outsourcing of labour. He stated that the Respondent’s core activities include: recruitment of sta; payroll management; and sta training and outsourcing. 16. The witness stated that the Respondent serves clients from various sectors of the economy. He averred that some of the sectors the Respondent works for include petroleum, banking and manufacturing. 17. The witness stated that the Respondent’s main role is to outsource sta to these sectors. He contended that the remuneration and benets of the outsourced sta are determined by the clients and that the Respondent only earns a fee for the manpower supply. 18. The witness stated that as an outsourcing company, the Respondent is the employer of the outsourced members of sta. However, he stated that the clients determine the remuneration package for the outsourced sta. 19. The witness stated that owing to the nature of the Respondent’s business, its employees are transferrable between dierent sectors. As such, he averred that it is not surprising to nd an employee who has been working in the petroleum sector transferred to an entirely dierent sector. 20. The witness stated that the Respondent’s employees are free to join trade unions of their choice. He further averred that those who have joined trade unions are free to issue the Respondent with instructions regarding deduction and remittance of their respective trade union dues. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2523/eng@2026-09-24 3

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21. The witness stated that whilst there was no problem with the Respondent’s employees joining trade unions of their choice, it is not feasible for the Respondent to get into Recognition Agreements with the trade unions. According to him, because the remuneration package for the Respondent’s employees is determined by the clients who have procured the manpower service, it is not possible for it (the Respondent) to negotiate these packages with the trade unions without the involvement of the respective clients. Further, he contended that the threshold for recognition of a trade union is dicult to be met owing to the continuous movement of employees from one sector to another because of the nature of outsourcing of manpower services. 22. The witness further stated that manpower outsourcing contracts are usually time-bound. As such, if the Respondent was to enter into collective bargaining with trade unions, the Collective Bargaining Agreements may not t into the timelines of the time bound outsourcing contracts. 23. The witness stated that at the time of his testimony, the Respondent had a total workforce of 1800 individuals. Out of this, he stated that 200 individuals were attached to the petroleum industry. 24. The witness acknowledged that the Claimant indeed served the Respondent with a check-o form for 142 members. However, he averred that this did not constitute a simple majority of the entire of the Respondent’s unionisable workforce to entitle it (the Claimant) to recognition. 25. The witness acknowledged that the parties to the action had gone through conciliation where it was noted that the Respondent is an outsourcing company. He further stated that the conciliator found that the Claimant had attained a simple majority of the Respondent’s sta who are assigned to the petroleum, oil and gas sector. However, he averred that the conciliator’s verdict did not take into account the Respondent’s entire unionisable workforce. 26. The witness stated that although the conciliator recommended that the parties enter into a Recognition Agreement, the Respondent did not agree with the recommendation. Hence the instant suit. 27. The witness conrmed that the Claimant subsequently furnished the Respondent with a further list of 31 members. He said the Respondent was and remains ready and willing to continue deducting and remitting trade union dues for employees who have acknowledged membership with the Claimant but is not ready to sign a Recognition Agreement with it (the Claimant) owing to the uid nature of its (the Respondent’s) business. 28. The witness reiterated that owing to the shifting demands by the Respondent’s clients on labour supply, it was dicult to maintain xed numbers of employees in one sector. He contended that this makes it impracticable for the Respondent to enter into a Recognition Agreement with any particular trade union. 29. The Respondent further called an expert witness to speak to the matter. The witness stated that in a labour outsourcing arrangement, the worker is subject to two centers of power: the entity which hires him out; and the entity which utilizes his labour. 30. The witness said that the arrangement thus yields two contracts. The rst contract is between the worker and the outsourcing company. The second contract is between the outsourcing company and the client who utilizes the labour. 31. The witness further stated that although the worker has a work relationship with the entity which utilizes his labour, he has no employment relationship with it. She averred that what emerges in the end is a triangular relationship between the three actors. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2523/eng@2026-09-24 4

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32. The witness stated that this arrangement creates legal challenges. She averred that whilst the consumer of the labour product gives work instructions to the worker, it/he/she does not accord him human resource (HR) support because this function is left to the outsourcing company. She further stated that whilst the employee performs his duties at the client’s premises, his HR issues are handled elsewhere by the outsourcing company. 33. The witness further observed that when it comes to payment of wages, the client usually pays the outsourcing company in order for the outsourcing company to pay the worker. As such, she averred that the client usually reserves the power to determine the pay package for the worker. 34. The witness stated that although the client is not the employer of the worker, it/he/she (the client) is the one and not the outsourcing company which/who deals with work injuries and occupational diseases. Having regard to these realities, the witness stated that it is dicult to pinpoint who the actual employer is under the arrangement. 35. The witness stated that every worker has a right to join a trade union of his choice. However, she stated that there is a challenge regarding how outsourced workers can eectively enjoy this right. 36. The witness stated that because the consumer of the labour product under the arrangement determines the pay package of the outsourced employee, he is an essential party in any collective bargaining process. Yet, because he is not recognized as the employer of the outsourced worker under the prevailing legal regime, he is not entitled or indeed obliged to participate in the collective bargaining process. The duty of collective bargaining, according to the witness, legally falls on the outsourcing company. Yet, the outsourcing company does not determine the worker’s pay package under the arrangement. 37. In the witness’s view, this legal quagmire can only be resolved if Kenya enacts a law which allows the formation of trade unions to represent outsourced workers. It was her view that this will resolve the current challenges which are associated with the emerging non-standard forms of work, including outsourcing of labour. 38. The witness stated that some countries such as the United States of America have enacted laws which recognize both the outsourcing entity and the entity which utilizes labour under an outsourcing arrangement as joint employers for purposes of oering eective protection to the outsourced workers. In her view, if Kenya adopted a similar approach, the dilemma such as the one that this case presents will be obviated. 39. The witness stated that the simple majority principle for purposes of recognition of a trade union with regard to outsourcing company should be pegged on the entire unionisable workforce of the company as opposed to being sector based. She averred that this is necessary in order to avoid multiplicity of representation at the workplace. 40. The witness further stated that an outsourced worker has no permanent relationship with the consumer of his labour services. She said that the worker can be moved from one client to another at any time rendering it dicult for the court to apply the conventional rules in determining recognition of trade unions. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2523/eng@2026-09-24 5

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Issues for Determination 41. After evaluating the pleadings, evidence and submissions by the parties, the following issues arise for determination:a. Whether the Claimant is entitled to be granted recognition by the Respondent in terms of section 54(1) of the Labour Relations Act. b. Whether the Respondent is duty bound to deduct and remit to the Claimant trade union dues from employees who have acknowledged their membership with the Claimant. c. Whether the court should restrain the Respondent from victimizing the Claimant’s members on account of their trade union membership. d. Who should bear costs of the suit? Analysis 42. On the rst issue, the court is convinced that the Respondent is engaged in the business of manpower outsourcing. Although the Claimant sought to dispute this fact by asserting that the Respondent had not tabled documentary evidence to speak to the matter, there are pieces of evidence which establish this fact. 43. First, the Respondent’s rst witness, Antony S Lunalo (RW1), spoke to the matter. He stated under oath that he was the Respondent’s General Manager and that the Respondent’s core business was to oer sta outsourcing services to various entities. 44. Second, the Claimant’s witness acknowledged during trial that the Respondent’s employees work in the petroleum and other sectors. This, in the court’s view, is an implied concession by the Claimant that the Respondent’s workforce is deployed to work for entities which operate in multiple sectors. 45. Third, the conciliator’s report dated 5th August 2022 which the Claimant tendered in evidence has a nding of fact that the Respondent is an outsourcing company which serves both local and multinational corporations. This corroborates the Respondent’s evidence that it is an outsourcing company. 46. As an outsourcing company, the Respondent stands in the position of the employer of the workers whom it has deployed to work for its various clients. This position has been armed through caselaw ( see for instanceAbyssinia Iron & Steel Limited v Kenya Engineering Workers Union & another [2016] KECA 510 (KLR)). 47. This being the case, the obligation to recognize any trade union for purposes of collective bargaining for the benet of employees who have been outsourced by the Respondent to various clients falls on the Respondent and not the clients who have procured the services of the workers (seeAbyssinia Iron & Steel Limited v Kenya Engineering Workers Union & another (supra)). The challenge which this case presents is whether the Respondent is obligated to accord recognition to a trade union once it (the trade union) recruits a simple majority of its (the Respondent’s) unionisable employees deployed to a specic sector where the trade union operates or whether this obligation only arises if the trade union recruits a simple majority of the entire unionisable workforce of the Respondent deployed across various sectors. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2523/eng@2026-09-24 6

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48. The starting point in unravelling this challenge is section 54 (1) of the Labour Relations Act which provides as follows:An employer, including an employer in the public sector, shall recognize a trade union for purposes of collective bargaining if that trade union represents the simple majority of unionisable employees.’’ 49. This provision appears unambiguous. A plain reading of it (the provision) shows that an employer is obligated to accord a trade union recognition if the trade union represents a simple majority of the employer’s unionisable workforce. 50. However, whether the phrase ‘’simple majority of unionisable employees’’ in the provision denotes a simple majority of employees working in a specic sector or a simple majority of the entire of the unionisable sta engaged by the employer can only be deciphered by reading the statute holistically. If the provision is interpreted in isolation of other provisions of the statute, its true meaning will be lost. 51. Section 14 (1) (d) of the Act implies that the operations of a trade union should be conned to a specic sector. In eect, the law does not encourage registration of multi-sectoral trade unions. This position was armed by the Court of Appeal in the case of Ongera & 2 others v Registrar of Trade Unions & another [2024] KECA 108 (KLR) where the learned Judges of the court observed that the purpose of the restriction was to limit the proliferation of trade unions within one sector, an eventuality which is likely to weaken the unions. 52. It is true that section 54 (1) of the Labour Relations Act requires an employer to accord recognition to a trade union if it represents a simple majority of the employer’s unionisable sta. However, the expression ‘’simple majority of unioinsable employees’’ in the provision ought to be understood in the context of the restriction imposed by section 14 of the Act on trade unions to operate in specic sectors. Viewed from this perspective, the phrase ‘’simple majority of unionisable employees’’ in the provision can only imply a simple majority of the employees engaged in the sector where the trade union which is seeking recognition is licensed to operate. It (the phrase) cannot have been intended to denote a simple majority of the entire of the unionisable workforce of the employer if the employer is operating in multiple sectors. The following illustration will help to elucidate the point. 53. A single investor (employer) may choose to invest in two distinct ventures such as mining and food processing. If he does so, he inevitably will be expected to hire sta to work in the two sectors. 54. Whilst recruiting sta for the two sectors, the employer may, for instance, hire 100 unionisable employees to serve in the mining venture and another 100 unionisable employees to serve in the food manufacturing venture. If this happens, the employer will have to deal with at least two dierent trade unions for purposes of representation of the employees in the two enterprises because of the sector based restriction imposed on trade unions by section 14 of the Labour Relations Act. 55. In determining whether to accord either of the two trade unions recognition, the investor (employer) will not be entitled to insist that each of the trade unions recruits a simple majority of his combined unionisable workforce of 200 employees in the mining and food sectors. The simple majority threshold for recognition of either of the two trade unions will be measured against the number of unionisable employees in their respective sectors. It will otherwise be absurd to insist that for the trade unions to be recognized as representing the unionisable employees in either of the two sectors, they (the trade unions) must recruit a simple majority of the investor’s (employer’s) entire unionisable workforce of 200 individuals attached to both the food and mining sectors. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2523/eng@2026-09-24 7

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56. It is in this context that the Claimant’s quest for recognition by the Respondent ought to be understood. As noted earlier, the Respondent stands in the position of the employer of the workers it has deployed to work for the various entities in dierent sectors. As such, just like an employer who elects to invest in various sectors, the simple majority threshold for recognition of trade unions to represent workers hired by the Respondent to serve in the various sectors has to be sector based. 57. An outsourcing company, just like any other employer or investor, is free to assign its employees either to a single sector or multiple sectors. However, as it (the outsourcing company) makes this decision, it ought to bear in mind the fact that the number of trade unions it is likely to be required to recognize will be proportionate to the number of sectors it deploys its employees to. 58. It is otherwise absurd to contend that an outsourcing company which has deployed workers in multiple sectors is only obligated to grant recognition to trade unions which have recruited a simple majority of the entire of its unionisable workforce across the various sectors. Such argument is blind to the reality that the law connes the operations of trade unions to specic sectors meaning that they can only recruit members from those specic sectors. As such, the threshold for simple majority for purposes of recognition under section 54 of the Act can only have been intended to be sector based. 59. I’m alive to the obiter dicta in the case of Kenya Petroleum Oil Workers Union v Giefcon Limited & another [2015] KEELRC 676 (KLR) to the eect that recognition for outsourcing companies should not be sector based. However, I do not agree with this observation for the simple reason that the learned Judge, whilst rendering that view, did not consider that the law restricts operations of trade unions to specic sectors. 60. I have also considered the expert opinion which discusses the challenges that outsourcing of labour presents when it comes to collective bargaining. However, I note that the expert witness did not suggest that it is contrary to the law for an outsourcing company to recognize sector based trade unions for purposes of collective bargaining. The fact that it will be onerous to accord such a trade union recognition in the circumstances does not render the recognition either irregular or illegal. 61. As a matter of fact, recognition of trade unions for purposes of collective bargaining applies to all employers, including outsourcing companies, once the recognition threshold has been met. This fact is self-evident in the case of Kenya Union of Commercial, Food and Allied Workers v Sheer Logic Management Consultants Limited [2020] KEELRC 1048 (KLR) where the learned Judge ordered the Respondent, an outsourcing company, to grant the Claimant trade union recognition. 62. This reality was further fortied by the Court of Appeal in the case of Abyssinia Iron & Steel Limited v Kenya Engineering Workers Union & another [2016] KECA 510 (KLR) when the learned Judges of the court observed as follows:…….it goes without saying that save for the limitations specied under Article 24 of the Constitution, it is a constitutional right for every worker, even those who are outsourced, to be part of a union, and in view of the circumstances of the instant case, an employer is obliged to recognize a union where it represents a simple majority of the unionisable employees of the person or entity in question.’’ 63. The contention that outsourced workers who are engaged by multi-sectoral outsourcing companies cannot enjoy the benet of collective bargaining because of the outsourcing companies’ multi-sector involvement goes against the tenet of article 41 (2) (c) of the Constitution which guarantees every worker the right to form, join or participate in the activities and programmes of a trade union which, in my https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2523/eng@2026-09-24 8

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view, includes the right of outsourced employees to participate in collective bargaining through their representative trade union. 64. Further, article 27 (1) & (2) of the Constitution entitles every person to equal protection and benet of the law and to equal enjoyment of all rights and fundamental freedoms. As such, outsourced workers, just like their counter-parts in standard form contracts, are entitled to enjoy the benets of the collective bargaining process which is conditional on the trade union which represents them being recognized by their employer. As such, to argue that these lot of employees should miss out on this entitlement because their employer has opted to venture into multiple sector outsourcing is to deprive them of equal protection and benet of the law in order to accommodate the business model and convenience of the employer which is unconstitutional. 65. The court agrees with the holding in the case of Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers (Kudheiha) v British Army Training Unit Kenya [2015] KEELRC 839 (KLR) that the only prerequisite for recognition of a trade union is: that it represents a simple majority of the employees of the enterprise; and that the simple majority comprises unionisable employees of the enterprise. With regard to multi-sectoral outsourcing companies, this condition is deemed as met once a trade union recruits a simple majority of the employees who are deployed to the sector where the trade union is licensed to operate. 66. I agree with the expert witness that recognition of a trade union for purposes of collective bargaining in a triangular employment relationship presents logistical challenges in view of the two authority gureheads which the worker has to deal with. However and in my view, this challenge can be overcome if the outsourcing company and the client agree beforehand through the outsourcing agreement on their joint involvement in the collective bargaining process and on access rights by trade unions to the client’s premises for purposes of engaging the outsourced workers and as well representing them on work related matters. 67. In the instant case, the dispute between the parties is whether the Claimant, having attained a simple majority of the Respondent’s workforce in the petroleum, oil and gas sector, is entitled to be recognized by the Respondent as the trade union which represents unionisable employees in the said sector. The Claimant contends that it is entitled to recognition in the circumstances. On the other hand, the Respondent contends that the Claimant is not entitled to recognition because it has not recruited a simple majority of its (the Respondent’s) entire unionisable workforce and because of the multisectoral engagement by the Respondent. 68. The evidence on record shows that the Claimant had recruited 142 of the Respondent’s workforce engaged in the petroleum, oil and gas sector as at the close of November 2021. This fact is conrmed by the check-o forms which were tendered in evidence. Further, RW1 conrmed this reality whilst testifying orally in court. 69. The Claimant contends that this gure represents more than a simple majority of the Respondent’s workforce in the petroleum, oil and gas sector. This position was conrmed by the conciliator who was appointed by the Ministry of Labour and Social Protection through her report dated 5th August 2022. 70. During trial, RW1 stated that as at the time of giving his testimony (22nd July 2025), the Respondent had a total of 1800 employees. He further stated that out of this, 200 employees were working in the petroleum, oil and gas sector. As such, even as at the time this witness gave evidence in court, the gure of the Claimant’s members (142) still represented more than a simple majority of the gure of the Respondent’s unionisable employees (200) in the petroleum, oil and gas sector. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2523/eng@2026-09-24 9

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71. Further, the Central Planning and Projects Monitoring Department from the Ministry of Labour and Social Protection (CPMU) also prepared a report dated 7th February 2024 which spoke to the matter under consideration. According to the report, the Respondent’s unionisable workforce in the petroleum, oil and gas sector as at 31st December 2023 comprised of 240 employees. Out of this, 124 employees representing more than a simple majority of the 240 employees, armed their membership with the Claimant. 72. Having regard to this evidence, it is apparent that the Claimant has recruited a simple majority of the Respondent’s workforce in the petroleum, oil and gas sector. As such and based on the earlier observations in the decision, it (the Claimant) is entitled to recognition by the Respondent as the trade union representing the Respondent’s unionisable workforce attached to the petroleum, oil and gas sector. 73. The Respondent presented a number of withdrawal forms in evidence to back its contention that most of the employees who had joined the Claimant have since withdrawn their membership. However, it is noteworthy that none of the aected employees were either called as witnesses or requested to swear adavits to speak to the alleged withdrawals. That being the case, it is not possible for the court to verify the authenticity of withdrawals forms. 74. Importantly, section 48(8) of the Labour Relations Act obligates employers to forward copies of notices by employees who have withdrawn their union membership to the aected trade union. The purpose of this requirement is to enable the trade union to verify the authenticity of the withdrawals. 75. In this case, although the Respondent contends that some of the employees withdrew from the Claimant union by issuing it (the Respondent) with withdrawal notices, it (the Respondent) did not present evidence to demonstrate that it forwarded copies of the withdrawal forms to the Claimant for purposes of verication. Neither was there evidence to demonstrate that the aected employees actually delivered the forms to the Claimant. In the premises, the court is unable, without this evidence, to determine whether the employees indeed withdrew their membership from the Claimant. This reality is further fortied by the fact that although some of the withdrawal forms suggest that a number of the employees withdrew their union membership in 2022, the subsequent report by the CPMU dated 7th February 2024 shows that the Claimant still had more than 124 members from the Respondent’s unionisable workforce (240) in the petroleum, oil and gas sector as at December 2023. 76. The second issue for determination is whether the Respondent is duty bound to deduct and remit to the Claimant trade union dues from employees who have acknowledged their membership with the Claimant. The court notes that the Claimant has presented evidence of having recruited approximately 142 of the Respondent’s unionisable sta engaged in the petroleum, oil and gas sector before it instituted these proceedings. It (the Claimant) has also presented evidence of a Ministerial Order permitting it to collect trade union dues from its members. 77. On the other hand, RW1 conrmed during trial that the Claimant indeed served the Respondent with the check-o forms for the initial 142 employees and a further list of 31 additional employees. RWI also stated that the Respondent was amenable to and was indeed collecting and remitting trade union dues from employees who had acknowledged their membership with the Claimant. 78. The law regarding deduction and remittance of trade union dues from employees who have acknowledged membership with a trade union is not in doubt. The employer is obligated to deduct and remit to the trade union the dues from such employees within the prescribed timelines irrespective of whether the parties have a Recognition Agreement. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2523/eng@2026-09-24 10

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79. Speaking to this matter in the case ofKenya Petroleum Oil Workers Union v Giefcon Limited & another (supra), the learned Judge expressed himself as follows:The payment of Trade Union dues does not depend on the particular Employer’s grant of recognition to the Trade Union. Employees can remit Trade Union dues under the CheckO system under Section 48 of the Labour Relations Act, or pay those dues directly. Where an Employer has received Check-O Forms, the Employer should deduct trade union dues from the named Employees’ salaries, and remit to the Trade Union. There is no reason to wait until the Trade Union is granted, or nally denied, recognition. Statutory deductions and other deductions from an Employee’s wages which the Employee has authorized in writing are permissible under Section 19 of the Employment Act 2007. Employers have no right to direct Employees on disposal of wages and salaries. The Employer has no justication in rejecting an Employee’s request for Check-O deductions, so long as such deductions do not violate wage protection granted under Part V1 of the Employment Act 2007.’’ 80. Having regard to the foregoing, it is apparent that the Respondent is duty bound to deduct and remit to the Claimant trade union dues from those employees who have acknowledged their membership with the Claimant. This obligation will only cease if the employees leave employment or resign from the Claimant trade union. 81. The third issue for consideration is whether the court should restrain the Respondent from victimizing the Claimant’s members on account of their trade union membership. The Claimant averred that the Respondent had threatened to victimize its members because of the ongoing dispute between the parties. It relied on the attempts by the Respondent to declare redundancies which aected some of the employees as proof of harassment of the employees. However, during the trial, the Claimant’s witness conceded that besides the foresaid, there was no other evidence to demonstrate that indeed the Respondent had set out to victimize the Claimant’s members. 82. In the interlocutory ruling dated 29th September 2023, the court declined to issue an order of interim injunction to restrain the Respondent from harassing the Claimant’s members purely on the grounds that some of the employees had resigned from the Claimant or had been subjected to a redundancy process. The court noted that the foregoing, without more, did not constitute evidence of harassment and victimization. The court further stated that the Claimant needed to present cogent evidence from the aected employees to demonstrate that their decision to resign from its membership was involuntary. 83. During trial, the Claimant did not present any additional evidence to back its claim that its members were facing harassment or victimization on account of their trade union membership. None of the employees who had allegedly been victimized was presented to testify on the issue. 84. Absent this evidence, the court has no basis to return a nding of victimization of the aected employees. As such, it cannot issue the order of injunction sought. Determination 85. After evaluating the evidence on record and submissions by the parties against the applicable law, the court makes the following ndings and attendant orders:a. The court nds that the Claimant has provided evidence to demonstrate that it has satised the simple majority threshold under section 54(1) of the Labour https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2523/eng@2026-09-24 11

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Relations Act to entitle it to be accorded recognition by the Respondent for purposes of representing the Respondent’s unionisable employees deployed in the petroleum, oil and gas sector. b. Accordingly, the court orders the Respondent to enter into a Recognition Agreement with the Claimant in this regard within sixty (60) days from the date hereof. c. To address the Respondent’s concerns about the draft Recognition Agreement requiring it to commit to matters which require the input of its client, the parties should consider remodeling the agreement to conne it to bare recognition so that the other issues which require the Respondent’s client’s input are left to the collective bargaining process which, as suggested earlier in the decision, can be undertaken with the Respondent’s client on board. Alternately, if any item in the draft Recognition Agreement which requires the client’s input must be retained, then such input should be sought and obtained within the timelines set in this decision. d. . That said, the content of the Recognition Agreement has to be agreed between the parties. As such, the parties should not expect the court to get into a discussion on the actual terms of the agreement. Nevertheless, the fact that there may be disagreement on the terms of the agreement does not remove the obligation on the Respondent to accord the Claimant recognition since the Claimant has demonstrated that it has satised the threshold requirement for recognition under section 54(1) of the Labour Relations Act. e. The court nds that the Respondent is obligated by law to deduct and remit to the Claimant trade union dues from employees who have acknowledged their membership with the Claimant irrespective of whether the parties have a Recognition Agreement. f. Accordingly, the Respondent is ordered to continue deducting and remitting to the Claimant trade union dues from the Claimant’s members who are currently in its (the Respondent’s) employment as long as such members have not repudiated their trade union membership in accordance with the law. g. The court nds that the Claimant has not presented evidence to demonstrate that the Respondent has victimized any of its (the Claimant’s) members on account of their trade union membership. h. As such, it (the court) declines to issue an order of permanent injunction to retrain the Respondent from victimizing and or harassing the said employees as prayed for. i. Due to the novel nature of the issues raised in the cause, the court declines to condemn the Respondent to bear costs of the suit. j. As a result, each party shall bear own costs of the suit. k. Any other relief which was sought but which has not been expressly granted is deemed as not having been granted. DATED, SIGNED AND DELIVERED ON THE 24TH DAY OF SEPTEMBER, 2026 https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2523/eng@2026-09-24 12

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B. O. M. MANANI JUDGE In the presence of: …………….for the Claimant …………….for the Respondent Order In light of the directions issued on 12thJuly 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2523/eng@2026-09-24 13

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