Kenya Union of Domestic, Hotels, Educational Institutions and Hospitals Workers v The Board of Management St. Theresa's Bumini Secondary School

d) That the respondent to bear the cost of this suit plus interest at 20,000 Kshs. e) That the respondents to sign a recognition claimant agreement with the claimant within 7 days from the date the judgement is issued with regards to this matter. f) That the court to issue an order it deems just and fit. 2. The memorandum of claim was accompanied with a verifying affidavit sworn by Thomas Mboya, the Claimant’s Branch Secretary, a list of documents, and copies of the listed documents. 3.While Mr Simiyu from the Office of the Attorney General appeared in court for directions, no memorandum of appearance was filed or response to the claim by or for the Respondent. 4.However, when the matter came up in court for directions on 17th March 2026, Mr Simiyu indicated that the Respondent would not be opposing the claim, and thus no response to the claim was filed. 5.By consent, the claim was canvassed by way of written submissions. The Claimant’s representative, Mr Shiraku, filed written submissions dated 30th March 2026. No submissions were filed by or for the Respondent. II. THE CLAIMANT’S CASE 6.The claimant’s case is expressed in the memorandum of claim, the filed documentary evidence, and the written submissions by the representative. ELRC KAKAMEGA CAUSE NO. E026 OF 2025 JUDGMENT 2 | PAGE

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7. The Claimant pleaded that on 3rd May 2023, 24 unionisable employees of the Respondent joined the union and signed checkoff forms, and the Claimant met the threshold of a simple majority. The claimant thereafter repeatedly requested the Respondent to execute a recognition agreement through letters dated 10th July 2023, 31st August 2023, 16th February 2024, 10th June 2024, and 10th September 2024, but the Respondent failed to attend scheduled meetings or sign the agreement despite several invitations. 8. The Claimant further avers that it served the Respondent with duly executed check-off forms and Form S requiring deduction and remittance of trade union dues in accordance with Section 48 of the Labour Relations Act. Despite repeated reminders and followup visits, the Respondent neither deducted nor remitted union dues from the salaries of the member employees. 9. Following the Respondent’s continued refusal to comply, the dispute was reported to the Cabinet Secretary for Labour under Sections 62 & 65 of the Labour Relations Act. A conciliator was appointed who convened three conciliation meetings. The Respondent neither attended the meetings nor filed a response to the dispute, prompting the conciliator to issue a Certificate of Unresolved Trade Dispute dated 28th May 2025, clearing the way for either party to refer the dispute to court under Section 69(a) of the Labour Relations Act. ELRC KAKAMEGA CAUSE NO. E026 OF 2025 JUDGMENT 3 | PAGE

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10. The Claimant states that having recruited more than half of the Respondent's unionisable employees, it is entitled to recognition under Article 41(2)(c) of the Constitution and Section 54 of the Labour Relations Act, and that failure to execute a recognition agreement denies employees the benefit of collective bargaining under Section 57 of the Labour Relations Act. The Claimant further contends that the Respondent's refusal to deduct and remit trade union dues violates Section 48(3) of the Labour Relations Act, even after service of duly executed check-off forms and Form S. 11. The Claimant, therefore, seeks for orders compelling the Respondent to commence deduction and remittance of union dues, payment the accrued arrears of union dues, execution a recognition agreement within seven days, and for the Respondent to desist from further interference with deduction and remittance of union dues. 12. The Claimant prays for costs of the cause. III. SUBMISSIONS 13.The Claimant’s representative submitted on the following three issues – Whether the Respondent’s refusal to sign a Recognition Agreement constitutes a violation of the law; Whether the Respondent’s failure to deduct and remit union dues amounts to unfair labour practice; and, Whether the Claimant is entitled to costs of this suit. ELRC KAKAMEGA CAUSE NO. E026 OF 2025 JUDGMENT 4 | PAGE

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14.It was submitted that the Respondent unlawfully refused to recognise the Claimant despite it attaining the simple majority required under Section 54(1) of the Labour Relations Act, and further failed to deduct and remit union dues contrary to Section 48(3) of the Labour Relations Act. It was submitted that the Respondent's conduct violated the concerned employees’ constitutional right to fair labour practices and collective bargaining under Article 41 of the Constitution. 15. It was submitted that the Claimant demonstrated, through duly filed executed check-off forms, that it had recruited more than 50% of the Respondent's unionisable employees, thereby imposing a mandatory obligation upon the Respondent to execute a recognition agreement. Citing Kenya Engineering Workers Union v Multi Tools Limited [2024] KEELRC 1395 (KLR) and Kenya Union of Commercial Food and Allied Workers v Waterbuck Hotel Limited [2013] eKLR, it was submitted that recognition becomes mandatory once a trade union attains a simple majority, and refusal to recognise the union amounts to unfair labour practice. 16. On the issue of deduction and remittance of union dues, it was argued that the Respondent was under a statutory duty to deduct and remit union dues upon being served with the duly executed check-off forms. Citing Kenya Chemical and Allied Workers Union v Insight Management Consultancy Limited [2018] eKLR ELRC KAKAMEGA CAUSE NO. E026 OF 2025 JUDGMENT 5 | PAGE

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and Kenya Engineering Workers Union v Steel Structures Limited [2014] eKLR, it was submitted that deduction and remittance of union dues is a mandatory statutory obligation and not a matter of employer’s discretion. 17. The Court was urged to declare the Respondent's refusal to recognise the union and failure to remit union dues unlawful, compel execution of the recognition agreement and remittance of outstanding union dues, and award the costs of the cause to the Claimant. IV.ISSUES FOR DETERMINATION 18.The court has carefully and dutifully read through the pleadings filed, documentary evidence tendered by the Claimant, and the written submissions by its representative. The following issues are for determination – a) Whether the Claimant has met the requirements for deduction and remittance of union dues? b) Whether the Claimant has satisfied the threshold for the court to compel the Respondent to sign a recognition agreement? c) Who should bear the costs of the cause? V. UNION DUES 19. The Claimant averred that it submitted signed check-off forms, an attendance list of members and authority to deduct and remit union dues to the Respondent. It was asserted that the Respondent ELRC KAKAMEGA CAUSE NO. E026 OF 2025 JUDGMENT 6 | PAGE

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has not commenced the deductions despite the authority to deduct served upon it. 20. Deduction of union dues and recognition of a union by an employer are separate and distinct issues in law. Under Section 48 of the Labour Relations Act, an employer is bound to remit all union dues deducted to the union, irrespective of the existence of a recognition agreement. The law is that where there are more than five employees in the membership of a union, an employer shall make deductions and remit to the union. 21.The deduction and remittance of union dues from employees who have acknowledged union membership should be based on the Minister for Labour making an appropriate order through a notice in the Kenya Gazette, indicating the account to which such union dues should be remitted. It does not require a recognition agreement between a union and an employer for that to be done. The duty of the union is to submit to the employer the names and identities of the employees through the check-off forms. 22.The evidence on record is that the Claimant submitted check-off forms to the Respondent with the names of the employees who had joined the union but the Respondent failed, refused, and or neglected to act on the same. 23. The court finds and holds that the Claimant actually recruited more than five members in the employ of the Respondent and consequently, the Respondent was legally bound to deduct union ELRC KAKAMEGA CAUSE NO. E026 OF 2025 JUDGMENT 7 | PAGE

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dues from the salaries of the then, current, and future members of the Claimant and remit the same to the Claimant’s bank account as per the details provided. VI. RECOGNITION 24. Section 54 (1) of the Labour Relations Act provides as follows in regard to recognition agreements – An employer, including an employer in the public sector, shall recognise a trade Union for purposes of collective bargaining if that trade Union represents the simple majority of unionisable employees. 25. The Claimant submitted that it recruited 24 employees of the Respondent, which accounts for more than half of the total number of employees of the Respondent. This fact has not been disputed by the Respondent. 26. In the absence of evidence to the contrary, this number meets the threshold required under Section 54 of the Labour Relations Act. In Abyssinia Iron & Steel Limited v Kenya Engineering Workers Union [2016] eKLR the court held that – To be recognized as the representative trade Union of the workers of a person or entity, Section 54 of the Labour Relations Act stipulates that the minimum number of workers willing to join the Union must be a simple majority or 51% of the workforce. ELRC KAKAMEGA CAUSE NO. E026 OF 2025 JUDGMENT 8 | PAGE

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27. The court finds and holds that the Claimant has met the simple majority threshold required under Section 54 of the Labour Relations Act for the purposes of a recognition agreement. VII.ORDERS 28. The Court orders that – a) The Respondent be and is hereby ordered to deduct and remit union dues from all its employees who have signed Form S with the Claimant. b) The union dues shall be deducted and remitted from September 2026 failing which the Respondent shall pay such union dues for those employees out of its own funds, effective end of September 2026. c) The parties shall within 14 days of this judgment sign a recognition agreement. d) Thereafter, the parties shall engage in good faith and execute a Collective Bargaining Agreement (CBA) as soon as practically possible. e) There is no order as to costs. 29. The above orders in this judgment also apply in Kakamega ELRC cause No. E002 of 2026, mutatis mutandis. ELRC KAKAMEGA CAUSE NO. E026 OF 2025 JUDGMENT 9 | PAGE

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DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 28TH DAY OF SEPTEMBER, 2026. ……………………… DAVID NDERITU JUDGE ELRC KAKAMEGA CAUSE NO. E026 OF 2025 JUDGMENT 10 | PAGE

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