https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2192

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA CAUSE NO. E121 OF 2024 KENYA BUILDING CONSTRUCTION TIMBER AND FURNITURE INDUSTRIES EMPLOYEES UNION............................... CLAIMANT VERSUS GALAXY TIMBER COMPANY.................................... RESPONDENT JUDGMENT **A. Introduction** 1. Collective bargaining is the lifeblood of industrial relations. It is the mechanism through which the constitutional promise of fair labour practices under Article 41 of the Constitution, and the freedom of association guaranteed under Article 36, are given practical effect at the workplace. Where an employer has, by agreement, recognised a trade union for purposes of collective bargaining, the law expects that recognition to be honoured, and any dispute as to its validity to be resolved through the machinery which the Labour Relations Act, No. 14 of 2007 ("the Act"), has established for that purpose – and not by unilateral abandonment at the negotiating table. 2. This cause presents that very tension. The parties signed a Recognition Agreement on 10th January 2011. For over a decade, that agreement formed the basis of engagement between them, including in earlier litigation before the Industrial Court. It was only after the Claimant sought, in 2022, to revive stalled negotiations for a new Collective Bargaining Agreement (“CBA”) that the Respondent, for the first time, asserted that the Recognition Agreement had been signed under coercion and without informed consent. The Respondent asks this Court to accept that assertion, to relieve it of any duty to negotiate, and separately resists the Claimant’s alternative prayer that the sectoral CBA negotiated between the Claimant and the Timber Industries Employers Association – Kenya be applied to it. 3. What falls for determination, ultimately, is whether a recognition agreement of long standing may be unwound by a belated and uncorroborated assertion of coercion, and whether the statutory duty to bargain in good faith survives a fall in union membership, pending determination of a revocation application before the National Labour Board. **B. Background** 4. Via the Memorandum of Claim dated 14th October 2024, the Claimant prayed for orders against the Respondent as follows: (a) An order directing the Respondent to participate in and conclude the negotiations on the 40 disputed clauses of the 2022–2024 CBA; (b) In the alternative, that this Honourable Court adopts the current CBA between the Claimant and the Timber Industries Employers Association–Kenya, as applied in Mombasa Industrial Cause No. 238 of 2013, as the terms and conditions applicable to the Union’s members employed by the Respondent; (c) Any other order that this Honourable Court may deem fit to grant; and (d) Costs of the claim. 5. The Respondent resisted the claim through its Response to the Memorandum of Claim dated 27th December 2024. Its case is that the 2011 Recognition Agreement is invalid, having been signed under coercion and without informed consent, and that its revocation is pending before the National Labour Board. It contends that it ought not to be compelled to negotiate a CBA, nor be bound by the Timber Industries Employers Association–Kenya CBA, as it is not a member of that association and to hold otherwise would violate its constitutional rights. 6. The Respondent, in turn, prayed: (a) That the impugned Recognition Agreement relied upon by the Claimant be declared invalid; and (b) That the Claimant’s Memorandum of Claim be dismissed with costs. **C. The Claimant’s Case** 7. In its Statement of Claim, the Claimant avers that the parties entered into a Recognition Agreement in January 2011. Subsequent negotiations for a Collective Bargaining Agreement, however, failed, culminating in Industrial Court Cause No. 238 of 2013. In that cause, the Court held that the CBA between the Claimant and the Timber Industries Employers Association–Kenya served as the standard-setting agreement for the timber industry, and that its 2013–2015 terms applied to the Union’s members employed by the Respondent. 8. Although the Respondent initially applied those terms, the Claimant alleges that it later unlawfully declared most union members redundant, in retaliation. The redundancies were challenged in ELRC Cause No. 526 of 2017, where the Court found them unlawful and awarded the affected employees compensation. 9. The Claimant states that litigation and the COVID-19 pandemic delayed further negotiations for a CBA. In October 2022, having recruited additional employees, it submitted fresh proposals to restart negotiations. The Respondent, acting through consultants, declined to engage, asserting that it was under no obligation to enter into a CBA. 10. A separate dispute concerning the deduction and remittance of union dues was referred to conciliation and resolved once the Respondent commenced making the deductions. The Claimant then renewed its efforts to conclude CBA negotiations in July 2023. Although the Respondent instructed advocates to engage with the Claimant, no meaningful negotiations took place. 11. The Claimant consequently reported the CBA dispute for conciliation. The Respondent declined to participate, contending that the Claimant had not attained a simple majority of its employees. The Claimant maintains that it supplied the evidence requested, but the Respondent nonetheless failed to attend the conciliation meetings. The conciliator subsequently issued a certificate enabling the Claimant to institute the present proceedings. **D. The Respondent’s Case and Evidence** 12. In his witness statement, the Respondent’s director, Mr. Govind Arjan Ladhani, stated that he incorporated Galaxy Timber Company in 2006 to operate a carpentry workshop. He stated that, in 2011, a union official, Mr. Nzai, repeatedly visited the workshop and demanded that he sign an agreement relating to the deduction and remittance of union dues, on the basis that the Respondent’s employees had joined the Claimant union. 13. Mr. Ladhani stated that he did not properly understand the nature or effect of the agreement. He claimed that Mr. Nzai approached him while the workshop was busy and insisted that he sign it, and that his request to have a witness present was refused. He further stated that, at the material time, he could not adequately read or speak English or Kiswahili, and was accordingly unable to understand the contents and consequences of the Recognition Agreement. 14. The Respondent’s case is that it currently employs 29 employees, of whom only six are members of the Claimant union, such that the Claimant does not represent a simple majority of its workforce. 15. The Respondent maintains that it is not a member of the Timber Industries Employers Association–Kenya, and that the Association’s CBA ought not to be imposed upon it, as this would interfere with its freedom to associate, or disassociate. 16. The Respondent further states that it is experiencing financial difficulties, and that should the Court uphold the validity of the Recognition Agreement, the parties ought to be permitted to negotiate a separate CBA that takes into account its particular financial circumstances. 17. Mr. Peter Kioko Muthiani, the Respondent’s employee supervisor, stated that he was duly authorised to testify and act on the Respondent’s behalf. 18. He stated that the Respondent has 29 unionisable employees across its machine operation, assembling, finishing, administration, transport, and stores departments, of whom only six belong to the Claimant union – again disputing the Claimant’s simple majority. 19. Mr. Muthiani contended that there exists no valid Recognition Agreement capable of sustaining the negotiation and conclusion of a CBA. He alleged that the 2011 Recognition Agreement was procured through coercion and misrepresentation by the Claimant’s representative, Mr. Erustus Nzai, who he claims falsely informed Mr. Ladhani that all employees had joined the union and that the agreement was intended only to facilitate the deduction and remittance of union dues. 20. He stated further that Mr. Nzai presented the agreement while the workshop was busy and insisted on its signature without affording Mr. Ladhani sufficient time to seek advice, and that Mr. Ladhani did not sign freely, nor understand its nature and consequences, owing to his limited ability to communicate and read in English and Kiswahili. The Respondent accordingly applied to the National Labour Board for revocation of the Recognition Agreement. 21. Mr. Muthiani stated that the Respondent appointed Sitonik Advocates to negotiate with the Claimant, but that it became apparent during the engagement that the Claimant did not command a simple majority of its unionisable employees. The Respondent, nevertheless, continues to deduct and remit union dues in respect of the six employees who are members of the Claimant. 22. He stated that the judgment in Mombasa Industrial Cause No. 238 of 2013 was obtained ex parte, the Respondent not having participated in the hearing, and maintained that the CBA between the Claimant and the Timber Industries Employers Association–Kenya does not apply to it, not being a member of that association. 23. The witness further stated that imposing the Association’s CBA upon the Respondent would occasion serious financial hardship, it being a small and struggling business, and that it would be unjust to subject it to an agreement negotiated by an association to which it does not belong. 24. Finally, Mr. Muthiani stated that the Respondent is willing to negotiate a fair CBA reflecting its financial and business circumstances, provided the Claimant first obtains a valid Recognition Agreement by attaining a simple majority of its unionisable employees. **E. Submissions** ***The Claimant’s Submissions*** 25. The Claimant submitted that the parties signed a Recognition Agreement on 10th January 2011, and that the Respondent had, at different times, alleged that no such agreement existed, that it had been obtained fraudulently or through coercion, and that it was no longer effective for want of simple majority membership. 26. The Claimant relied on Industrial Court Cause No. 238 of 2013, K.B.C.T.F.I.E. Union v Galaxy Timber, which arose after the Respondent failed to cooperate in negotiations following the signing of the Recognition Agreement, and submitted that those proceedings confirmed the existence of the Recognition Agreement and addressed, and rejected, the Respondent’s attempt to raise membership as a ground for avoiding negotiations. The Claimant added that the judgment treated the timber industry CBA as a standard-setting agreement, applied its terms to the Respondent’s unionisable employees for the relevant period, and left it open to the parties to adopt those terms through a memorandum, or to negotiate their own personalised CBA. 27. The Claimant submitted that the Respondent’s correspondence through Bhatt & Bhatt Consultants shows that it did not, at that stage, question the validity of the Recognition Agreement, but stated instead that it did not wish to engage with the union at present or in future, and did not consider itself obliged to enter into a CBA. 28. The Claimant contended that this correspondence evinces bad faith and an intention to frustrate its members’ constitutional and statutory rights to join and participate in a trade union, relying on Articles 36 and 41 of the Constitution, and section 4 of the Labour Relations Act. 29. The Claimant also relied on K.B.C.T.F.I.E. Union v Twyford Ceramics Company Ltd & Another, ELRC Cause No. E476 of 2020. 30. The Claimant submitted that the Respondent later instructed Sitonik Advocates to engage on CBA negotiations; that the advocates requested the CBA proposals, indicated that the dispute would be resolved within a short period, and promised to furnish counter-proposals, yet no substantive negotiations took place, and the Respondent did not, at that stage, allege that the Recognition Agreement was invalid. It argued that the later challenge to the Agreement was consequently an afterthought, intended to delay or defeat the conclusion of a CBA. 31. The Claimant further submitted that, once the dispute was referred to conciliation, the Respondent refused to attend unless the Claimant produced the Recognition Agreement, check-off forms, and evidence of simple-majority membership, and that although the requested evidence was supplied, the Respondent still failed to participate, leading to the issuance of a certificate of conciliation – conduct which, the Claimant argued, demonstrates that the membership issue was being used as a device to avoid negotiations altogether. 32. On the alleged coercion, the Claimant submitted that the Respondent’s explanation lacks credibility, having been raised approximately thirteen years after the Agreement was signed, and pointed to the inconsistency of the Respondent’s several defences – that the Agreement was fraudulently obtained, that no agreement existed at all, and that the Claimant lacked a simple majority. 33. The Claimant argued that the Respondent’s application to the National Labour Board for revocation does not, of itself, invalidate the Recognition Agreement, which remains binding until formally revoked. 34. Relying on section 54 of the Labour Relations Act, the Claimant submitted that the simple-majority requirement applies at the point a trade union first seeks recognition, and that a subsequent reduction in membership does not automatically terminate a Recognition Agreement once granted. The Respondent, it argued, could not unilaterally disregard the Agreement, and was obliged to await the National Labour Board’s determination of its revocation application. 35. In support of the continuing duty to bargain despite reduced membership, the Claimant relied on Banking, Insurance and Finance Union (Kenya) v Jubilee Holdings Ltd, Nairobi ELRCC No. E257 of 2024, and submitted that, until revoked, a Recognition Agreement preserves the union’s organisational right to represent its members and the employer’s corresponding duty to bargain – a duty unaffected by the fact that the Claimant presently represents only six employees. 36. The Claimant submitted, finally, that the Respondent’s alleged financial difficulties are matters properly addressed during negotiation of the CBA, and afford no lawful basis for a wholesale refusal to negotiate. ***The Respondent’s Submissions*** 37. The Respondent submitted that the Recognition Agreement was signed under coercion and without informed consent, relying on the evidence of Mr. Ladhani that he was not, at the time, conversant in English or Kiswahili, and did not understand the legal meaning or consequences of the document, which was neither translated nor explained to him, nor was he afforded legal advice or an opportunity to consult before signing. These circumstances, it argued, undermined the voluntariness of the Agreement and rendered it procedurally defective and voidable. 38. The Respondent submitted further that its evidence on coercion, involuntariness, and lack of free will went unchallenged by cross-examination, the Claimant having elected to proceed by documentary evidence, such that its account of the circumstances of execution remains uncontroverted. It relied on Article 47 of the Constitution, submitting that the signing process did not satisfy the requirements of lawful, reasonable, and procedurally fair administrative action. 39. On the duty to negotiate, the Respondent submitted that it had applied to the National Labour Board for revocation of the Recognition Agreement under section 54(5) of the Labour Relations Act, and that, the validity of the Agreement being actively disputed and subject to statutory review, it ought not to be compelled to negotiate or conclude a CBA before the Board determines the revocation application – the delay in determination being attributable to institutional and financial constraints affecting the Board, and not to any tactical conduct on its part. 40. The Respondent relied on Banking, Insurance & Finance Union (Kenya) v Taifa Sacco Society Ltd [2014] eKLR, submitting that the Court ought to allow the National Labour Board to determine the recognition dispute before directing the parties to bargain. 41. The Respondent also relied on Olivado (EPZ) Limited v Isaiah Bundi Kirigwa & another [2019] eKLR. 42. On the alternative prayer for adoption of the sectoral CBA, the Respondent submitted that it is not a member of the Timber Industries Employers Association–Kenya, did not participate in negotiating that CBA, and that imposing it would offend the principles of privity of contract and freedom of contract, and would violate its freedom of association and disassociation under Article 36 of the Constitution, which it submitted includes the right not to associate. 43. The Respondent submitted that sectoral CBAs may furnish industry standards, but cannot be imposed on employers who are not members of the relevant employers’ association and have not consented to be bound. 44. It argued that the Claimant’s reliance on Industrial Court Cause No. 238 of 2013 was misplaced, the application of the sectoral CBA in that matter having been confined to the period 1st July 2013 to 30th June 2015, and the judgment not having imposed the sectoral CBA indefinitely, but rather left the parties at liberty to adopt it by memorandum, or negotiate their own CBA – which they had not done. 45. The Respondent denied that its refusal to negotiate amounted to bad faith, characterising its conduct as a lawful assertion of its rights – namely, its consistent challenge to the Recognition Agreement and pursuit of the statutory revocation procedure – rather than hostility towards the Claimant or its members, and argued that compelling it to negotiate under a disputed agreement would violate its rights under Articles 36, 41, and 47 of the Constitution. 46. Responding to the Claimant’s reliance on KUDHEIHA Workers v Gurunanak (Ramgarhia) Sikh Hospital [2025] KEELRC 946 (KLR), the Respondent submitted that the right of even a single union member to representation presupposes a valid Recognition Agreement, and that while a reduced membership may be irrelevant where a valid agreement exists, numerical strength cannot cure defects in an agreement whose validity is under statutory challenge. 47. The Respondent further relied on Kenya Private University Workers Union v Africa Nazarene University [2023] KEELRC 1982 (KLR), submitting that for the Court to determine the validity or revocation of the Agreement before the Board has acted would amount to an impermissible interference with, or pre-emption of, the Board’s statutory mandate. **F. Issues for Determination** 48. Four issues arise for determination: (a) Whether the Recognition Agreement dated 10th January 2011 remains valid and enforceable; (b) Whether the Respondent is obliged to negotiate a CBA with the Claimant; (c) Whether the CBA between the Claimant and the Timber Industries Employers Association–Kenya may be imposed upon the Respondent; and (d) Who should bear the costs of the cause. **G. Analysis and Determination** ***(i) Whether the Recognition Agreement is valid and enforceable*** 49. It is a foundational rule of evidence, codified at sections 107 to 109 of the Evidence Act, that he who alleges must prove. The Respondent, having pleaded that the Recognition Agreement was procured through coercion and without informed consent, bore the burden of establishing that plea to the required standard. A document regularly executed by the parties, and treated as valid for over a decade – including in prior inter partes engagement and litigation – carries with it a strong evidential presumption of regularity, which only cogent and timely evidence can displace. 50. Two features of the record militate against the Respondent’s discharge of that burden. First, the allegation of coercion was raised for the first time approximately thirteen years after the Agreement was executed, and only after the Claimant moved, in 2022, to revive CBA negotiations. Mere delay is not, of itself, fatal to a genuine claim of vitiated consent; but delay of this magnitude, unexplained save by reference to the very dispute that prompted it, is a material consideration going to credibility. 51. Secondly, and more tellingly, the Respondent’s own conduct in the intervening years is inconsistent with the coercion it now asserts. It engaged Bhatt & Bhatt Consultants, and later Sitonik Advocates, to correspond and treat with the Claimant on the footing that a bargaining relationship existed; it participated, however unsatisfactorily, in the earlier Industrial Court proceedings without raising invalidity; and it continues, to this day, to deduct and remit union dues for its unionised employees. A party who consistently treats an agreement as binding cannot, without more, be heard – many years later, and only when it becomes inconvenient to do so – to renounce it as never having bound it at all. This is the essence of the doctrine against approbating and reprobating: a party may not adopt one position, and years later take its diametric opposite to suit a new exigency, absent cogent explanation – none of which was forthcoming here. 52. I have also considered the Respondent’s submission that its evidence on coercion went unchallenged in cross-examination, the Claimant having proceeded by documentary evidence alone. The absence of cross-examination may render evidence formally uncontroverted, but it does not immunise it from scrutiny against the surrounding documentary record and the inherent probabilities of the case, nor does it relieve the Court of its duty to weigh that evidence against the conduct described above. On balance, I am not satisfied that the Respondent has discharged the burden of proving that the Recognition Agreement was procured through coercion or without informed consent. 53. In any event, and independently of the foregoing, section 54(5) of the Labour Relations Act vests in the National Labour Board, and the Board alone, the power to revoke a recognition agreement. As was held in ***Banking, Insurance & Finance Union (Kenya) v Occidental Insurance Company Limited [2025] KEELRC 3398 (KLR)*:** ***“In my view, the operative word in the foregoing statutory provision is ‘apply’. An employer or employers’ association intending to terminate and/or revoke a recognition agreement is required by the aforestated statute to ‘apply’ to the Board to terminate or revoke the recognition agreement. The power to allow or reject revocation and/or termination of a recognition agreement lies with the Board … An employer or an employers’ association cannot arrogate to itself the power to revoke or to terminate a recognition agreement. Parties to a recognition agreement may agree on the notice period which any party wishing to have the agreement terminated must give to the other, but an application for termination and/or revocation of the agreement must be made to the National Labour Board.”*** 54. The existence of the Recognition Agreement was, moreover, considered in Industrial Court Cause No. 238 of 2013, K.B.C.T.F.I.E. Union v Galaxy Timber, where the Court proceeded on the footing that the Respondent had granted the Claimant full recognition for purposes of representation and collective bargaining. The Respondent did not, at that time or since, obtain the revocation of that agreement. It has, it is true, now applied to the Board for revocation under section 54(5); but no revocation has been granted, and the mere filing of that application does not, by itself, terminate or suspend the Agreement’s operation. Until the Board acts, the Agreement subsists. 55. I find, accordingly, that the Recognition Agreement dated 10th January 2011 remains valid, subsisting, and binding upon the parties. ***(ii) Whether the Respondent is obliged to negotiate a CBA*** 56. Section 54(1) of the Labour Relations Act obliges an employer to recognise a trade union representing a simple majority of unionisable employees, for purposes of collective bargaining. As was observed in ***Kenya Petroleum Oil Workers Union v Nas Oil Kenya Ltd [2025] KEELRC 107 (KLR)*:** ***“Simply stated, the issue for determination is whether the Claimant has met the threshold for recognition in terms of section 54(1) of the Labour Relations Act. This section simply states that 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. It is clear that where a trade union meets the requirement it is to be recognised and proceed to negotiate terms of a collective bargaining agreement.”*** 57. Recognition, once granted and while subsisting, carries with it a continuing statutory duty to bargain. The Respondent’s contention that the Claimant now represents only six of its twenty-nine unionisable employees does not, without more, terminate that duty. The simple-majority threshold is the gateway to recognition; it is not a condition subsequent whose failure automatically extinguishes an agreement already in force. Termination or revocation of a subsisting Recognition Agreement must be pursued, and obtained, under section 54(5) – through the National Labour Board – and not simply asserted by an employer dissatisfied with a shrinking bargaining unit. 58. This approach accords with the object of Kenya’s labour relations framework, and with the country’s obligations under ILO Convention No. 98 on the Right to Organise and Collective Bargaining, which favours the promotion and encouragement of voluntary negotiation, rather than its unilateral abandonment once inconvenient. 59. The Respondent’s financial position, while a matter properly ventilated across the negotiating table – and one which may legitimately inform the content of any eventual CBA – is not a lawful basis for declining to come to that table at all. A struggling business is not thereby absolved of the duty to negotiate in good faith; it is, at most, entitled to negotiate terms that its circumstances can sustain. 60. I find, accordingly, that the Respondent is under a continuing obligation to engage the Claimant in good-faith negotiations over the 40 disputed clauses of the proposed 2022–2024 CBA. This Court cannot dictate the content of that agreement, nor compel the parties to consensus on any particular term; but it can, and does, require that the parties engage meaningfully, and in good faith, towards its conclusion. ***(iii) Whether the sectoral CBA may be imposed upon the Respondent*** 61. The Respondent is not a member of the Timber Industries Employers Association–Kenya, and did not participate in negotiating the CBA between that Association and the Claimant. Freedom of association under Article 36 of the Constitution is a two-sided guarantee: it protects not only the right to associate, but equally the right to disassociate. An employer cannot, consistently with that guarantee, be conscripted wholesale into a sectoral bargain struck by an association of which it was never a member, and to whose negotiations it was never a party. 62. That, however, is not quite what occurred in Industrial Court Cause No. 238 of 2013. There, the sectoral CBA was applied as a standard-setting benchmark for a defined period – 1st July 2013 to 30th June 2015 – and the Court expressly left the parties at liberty either to adopt those sectoral terms by memorandum, or to negotiate their own, personalised CBA. The earlier judgment did not, therefore, impose permanent sectoral membership upon the Respondent; it supplied an interim reference point in the continued absence of a concluded, bespoke agreement. 63. The Claimant’s alternative prayer – that this Court adopt the current sectoral CBA outright as the terms binding the parties – would go further than the 2013 judgment sanctioned, and would in substance achieve by judicial fiat what section 54 reserves for negotiation between the parties themselves. Having found that the Respondent remains under a duty to negotiate its own CBA with the Claimant, it would be neither necessary nor appropriate to short-circuit that process by imposing the Association’s CBA directly. The primary relief sought – an order compelling participation in, and conclusion of, negotiations – is the proportionate remedy; the alternative prayer accordingly falls away. ***(iv) Costs*** 64. Costs ordinarily follow the event, and on the primary contest here – the validity of the Recognition Agreement, and the existence of a duty to negotiate – the Claimant has substantially succeeded, while the Respondent’s counter-prayer for a declaration of invalidity fails. That said, this cause is, at its core, a trade dispute between a union and an employer who must continue to engage one another in an ongoing bargaining relationship going forward. Visiting the full costs of this litigation upon either party risks souring the very negotiations this judgment directs them to undertake in good faith. In the exercise of the Court’s discretion, and having regard to the continuing nature of the parties’ relationship, I consider it just that each party bear its own costs of the cause. **H. Disposition** 65. For the foregoing reasons, I make the following orders: (a) A declaration is hereby issued that the Recognition Agreement dated 10th January 2011 between the Claimant and the Respondent is valid, subsisting, and binding upon the parties. (b) An order is hereby issued directing the Respondent to participate in, and conclude, in good faith, negotiations with the Claimant on the 40 disputed clauses of the 2022–2024 Collective Bargaining Agreement, within sixty (60) days of the date of this judgment. (c) The Claimant’s alternative prayer, for an order adopting the current Collective Bargaining Agreement between the Claimant and the Timber Industries Employers Association–Kenya as the terms and conditions applicable to the Respondent, is declined. (d) The Respondent’s prayer for a declaration that the Recognition Agreement is invalid, and for dismissal of the Claimant’s claim, is dismissed. (e) Each party shall bear its own costs of the cause. 66. It is so ordered. dated, signed and delivered at Mombasa this 30th day of July 2026 **OCHARO KEBIRA** **JUDGE**