Kenya Engineering Workers Union v Bocon Materials Supplies Limited

compelled to sign the Recognition Agreement for the Collective Bargaining Agreement Negotiation. 5. THAT, the Respondent herein to be ordered to Honour the Article 36 of the constitution of Kenya on Freedom of Association 6. THAT, any other Relief the Honourable Court deem fit to grant. 7. THAT, the costs of this suit to be met by the Respondent herein. 2 The application rests on the grounds on its face and on the Supporting Affidavit of Wycliffee A. Nyamwata, sworn on 11th November 2025. Applicant’s Case 3 The Applicant avers that the dispute falls under Sections 48(1) and (2), 54(1) and 74 of the Labour Relations Act, 2007, and therefore requires urgent action. 4 It is the Applicant's case that it represents a simple majority of the Respondent's employees, being 50% + 1. On that basis, the Applicant contends that it is entitled to recognition. 5 The Applicant avers that check-off forms duly completed by the Respondent's employees have been forwarded to the Respondent. Page 2 of 7

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6 It further avers that the Applicant sought dialogue with the Respondent on signing the Recognition Agreement and on compliance with Section 48(1) and (2) of the Labour Relations Act. However, the Respondent turned down this opportunity for dialogue. 7 It is the Applicant's position that the Respondent's refusal to sign the Recognition Agreement amounts to a gross violation of Sections 48(1) and (2) and 54(1) of the Labour Relations Act, 2007. 8 The Applicant further contends that, in failing to comply with these provisions, the Respondent has also failed to honour Article 36 of the Constitution on freedom of association. Applicant’s Submissions 9 The Applicant framed the dispute as the Respondent's unlawful and unprocedural refusal to sign the Recognition Agreement, which it said is mandatory under Section 54(1) of the Labour Relations Act, 2007. It added that the Respondent had also declined to deduct union dues from the wages of its unionisable employees who had voluntarily joined the Union. 10 The Applicant identified eight issues for determination, which it condensed into the questions of service and the Respondent's default, the Respondent's obligation to recognize the Union and deduct dues, the employees' Page 3 of 7

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right to associate, and whether the matter should proceed by way of formal proof. 11 On service, the Applicant submitted that the Respondent was served with all its pleadings through the Court's process server, in accordance with Rule 24(7) of the Employment and Labour Relations Court (Procedure) Rules, 2024. 12 It submitted that an affidavit of service was filed under Rule 5(7) of the ELRC Rules, however, the Respondent deliberately declined to enter appearance or file a response, contrary to Rule 29(1) of the Rules. 13 On recognition, the Applicant argued that the parties are yet to sign a Recognition Agreement or negotiate a Collective Bargaining Agreement solely because of the Respondent's refusal. It contended that this refusal violates Sections 54(1) and 57(1) of the Labour Relations Act. Section 54(1) provides that: "An employer, including an employer in the public sector, shall recognise a trade union if that trade union represents the simple majority of unionisable employees." Section 57(1) provides that: "An employer, group of employers or employers' organisation that has recognised a trade union in accordance with the provisions of this Part shall conclude a collective agreement with the recognised trade union setting out terms and conditions of service for all unionisable employees covered by the recognition agreement." Page 4 of 7

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14 It is the Applicant's submission that the Respondent has no right to refuse to sign the Recognition Agreement. It further argued that the refusal violates Article 41 of the Constitution, which guarantees that every person has the right to fair labour practices. It also argued that the refusal offends Article 47(1), which provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. 15 On union dues, the Applicant submitted that it is undisputed that the Respondent declined to deduct union dues, despite having been served with check-off forms duly signed by its employees, authorising deductions from their wages. It argued that the refusal is a clear violation of Section 48(1) and (2) of the Labour Relations Act and is purposely meant to dilute Section 48(2) which provides that: "A trade union may, in the prescribed form, request the Minister to issue an order directing an employer of more than five 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 specified account of the trade union; or (ii) in specified proportions into specified accounts of a trade union and a federation of trade unions." 16 The Applicant submitted that the employees had voluntarily joined the Union in exercise of their right to freedom of association under Page 5 of 7 Article 36(1) of the

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Constitution, which provides that: "Every person has the right to freedom of association, which includes the right to form, join or participate in the activities of an association of any kind." It argued that joining a trade union of one's choice is a constitutional right that the Respondent is bound to respect. 17 Relying on Rule 31(1) of the Employment and Labour Relations Court (Procedure) Rules, 2024, the Applicant urged the Court to allow it to proceed by way of formal proof, since the Respondent had not entered appearance. 18 I have examined all the averments of the applicants herein. Despite service, the respondents did not file any responses nor participate in these proceedings. The applicants’ case therefore stood uncontroverted on all fours. I therefore find the application therefore allowed as prayed. The merited and is respondents are forthwith directed to sign a recognition agreement with the applicant and not less than 30 days from the date of this ruling. Costs in the cause. Dated, Signed and Delivered virtually at Nairobi this 1st Day of October 2026. HELLEN WASILWA JUDGE Page 6 of 7

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