Amalgamated Union of Kenya Metal Workers v Arihant Industries Limited

(c) that pursuant to Articles 36(1) and 41(2)(c) of the Constitution of Kenya 2010 and Clause 4(1) of the Labour Relations Act 2007, the Respondent organized and recruited 43 employees of the Respondent into its membership; and subsequently served a check off- system (documents) on the Respondent vide a letter dated 7th March, 2025, instructing the Respondent to deduct and remit Trade Union dues to the Claimant pursuant to Section 48 (1) & (2) of the Labour Relations Act. DRAFT (d) that despite service of the check off system documents as afore-stated, remained defiant, and the never Respondent executed the instructions on deduction and remittance of union dues. (e) that under cover of a letter dated 24 th March, 2025, the Claimant sent to the Respondent a standard formal Recognition Agreement for joint signing on 2nd April, 2025, but the Respondent declined to sign the same. JUDGMENT Nairobi ELRC Cause No. E602 of 2025Page 2 of 12

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(f) that subsequently, the Claimant forwarded a Trade Dispute to the Labour Cabinet Secretary for conciliation. (g) that there were reasonable grounds to confirm that employees were being threatened, harassed, intimidated and coerced against union membership. 2. The Claimant sought the following reliefs:(a) that a finding be made that the Respondent’s refusal to sign a Recognition Agreement DRAFT contravened Section 54(1) of the Labour Relations Act, and that an order be made that the Respondent signs a Recognition Agreement with the Claimant Union within 14 das of the Court’s Judgment. (b) that a finding be made that the Respondent’s refusal to deduct union dues contravened Section 48 of the Labour Relations Act, and that an order be made that the Respondent deducts and remits union dues within a month of the date of Judgment. JUDGMENT Nairobi ELRC Cause No. E602 of 2025Page 3 of 12

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(c) An order that the Respondent pays the Claimant accumulated trade union dues that ought to have been paid from its own money. (d) An order that costs of the suit be in favour of the Claimant. (e) 3. Any other relief that the Court may deem fit. Documents filed alongside the Memorandum of Claim included an affidavit in verification of the claim and a list of documents dated 25th June, 2025, listing 4 documents. The listed documents included check-off system documents and DRAFT a covering letter, a standard draft recognition agreement and a covering letter, and letters by the conciliator. 4. The suit was filed contemporaneously with an urgent Notice of Motion dated 25th June, 2025, but which the Claimant subsequently withdrew on 3rd December, 2025. 5. The Respondent filed a Statement of Response and pleaded:(a) that the Claimant Trade Union is registered to represent employees in the motor sector, metal workers and auto ancillaries as stated in their JUDGMENT Nairobi ELRC Cause No. E602 of 2025Page 4 of 12

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letter to the Respondent dated 24th March, 2025, which forms part of the Claimant’s documents/exhibits filed herein. (b) that the Respondent operates in the Plastic and Chemical Manufacturing Sector; which falls outside the scope of the Claimant’s mandate. (c) that under Section 54(1) of the Labour Relations Act, a Union can only be recognised for purposes of collective bargaining where it represents a simple majority of unionisable employees within the sector for which it is registered. That DRAFT the Claimant does not fall within the Respondent’s sector. (d) that pursuant to Section 48(2) of the Labour Relations Act, an employer is only obligated to deduct and remit trade union dues upon receipt of valid check-off forms from a properly mandated Trade Union. That since the Claimant does not cover Respondent’s the sector, any such deduction would be contrary to the law, and therefore unlawful. JUDGMENT Nairobi ELRC Cause No. E602 of 2025Page 5 of 12

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(e) that the Respondent denied harassing, intimidating or coercion of employees; and that it respected employees’ constitutional right and freedom of association under Articles 36 and 41 of the Constitution of Kenya 2010. (f) that the Claimant’s suit be dismissed in its entirety, with costs. 6. On 3rd December, 2025, the Court directed that the suit herein determined pursuant to Rule 59 of the Employment and Labour Relations Court (Procedure) DRAFT Rules 2024; and ordered both parties to file and serve their respective witness affidavits and written submissions. 7. Having perused the pleadings, documents and witness affidavits filed herein, issues that fall for determination, in my view, are as follows:(a) Whether the Claimant is properly suited in the present suit. (b) Whether the reliefs sought are available to the Claimant. JUDGMENT Nairobi ELRC Cause No. E602 of 2025Page 6 of 12

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8. On the first issue, the Claimant pleaded at paragraph 1 of its Memorandum of Claim that “its mandate is to represent employees in the Metal and Motor Trades Sectors”; while the Respondent “is a manufacturer of polythene and bags”. 9. On its part, the Respondent pleaded that the Claimant Trade Union is registered to represent employees in the motor sector, metal workers and auto ancillaries, according to documents filed by the Claimant. That the Respondent operates in the plastic and chemical sector which falls outside the scope of the Claimant’s registered mandate; DRAFT and that any deduction of union dues in favour of the Claimant, under the circumstances, would be contrary to the law and therefore unlawful. 10. In view of the foregoing pleadings by both parties, there is a clear agreement on the fact that the Respondent does not fall within the sector for which the Claimant Trade Union is registered. It is trite that parties are always bound by their pleadings as presented by them to a Court of law. JUDGMENT Nairobi ELRC Cause No. E602 of 2025Page 7 of 12

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11. It was stated as follows in the case of Daniel Otieno Migore – vs – South Nyanza Sugar Company Limited [2018] eKLR:“It is now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at DRAFT variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral & Boundaries Commission & Another – vs – Stephen Mutinda Mule & 3 Others [2014] eKLR, which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji [NIG] – vs – Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance of pleadings:- JUDGMENT Nairobi ELRC Cause No. E602 of 2025Page 8 of 12

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“. . . it is now a trite principle in law that parties are bound by their own pleadings and that any evidence led by any of the parties which averments does in the not support pleadings, or the put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded . . .” 12. Under Section 14 of the Labour Relations Act, one of the mandatory requirements for registration of a trade union is a DRAFT constitution that has been adopted by the trade union, and which complies with the Act. Section 14(e) of the Act provides as follows:“(e) Subject to sub-section (2), only members in a sector specified in the Constitution qualify for membership of the trade union”. 13. Among the documents annexed to the Respondent’s witness affidavit is a copy of the Claimant’s constitution as presented to the Registrar of Trade Unions at the time of the Claimant’s registration. JUDGMENT Nairobi ELRC Cause No. E602 of 2025Page 9 of 12

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14. Clause 2 of the Claimant’s said Constitution provides as follows:“(i) Membership of the Union shall be drawn from persons employed in any undertaking or part of an undertaking which consists in the carrying on for gain of one or more of the following activities:- Motor Trade Group. - Electrical and Electronic Trades. - Tyre Manufacturers or Retreading Group. DRAFT - Battery Manufacturing group. - Allied industries to the Metal Trade.” 15. The Claimant’s said constitution, whose authenticity the Claimant did not question, does not mention/include plastic, paper and chemical manufacturing, which is shown to be the Respondent’s Sector. The Claimant could not, therefore, claim to have lawfully and validly recruited members from a Sector which it is not mandated to cover. Any purported recruitment of “members” outside its lawfully mandated sector was unlawful, null and void. JUDGMENT Nairobi ELRC Cause No. E602 of 2025Page 10 of 12

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16. The Respondent’s refusal to deduct union dues in favour of the Claimant and to remit them to the Claimant cannot be faulted, and no cause of action accrued to the Claimant from such refusal. 17. Further, the Claimant is non-suited, in view of the foregoing; and the suit herein is an abuse of this Court’s process. 18. Having made the foregoing finding, I will not delve into the second issue, as doing so will be a mere academic exercise. DRAFT 19. In the upshot, and having considered written submissions filed by both parties herein, the Claimant’s suit herein is hereby dismissed. 20. Each party shall bear its own costs of the suit. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2026 AGNES KITIKU NZEI JUDGMENT Nairobi ELRC Cause No. E602 of 2025Page 11 of 12

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JUDGE ORDER This Judgment has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. AGNES KITIKU NZEI JUDGE Appearance: DRAFT Mr. Ondiege for the Claimant Mr. Sumaria for the Respondent JUDGMENT Nairobi ELRC Cause No. E602 of 2025Page 12 of 12

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