Kenya Engineering Workers Union v Morals Business Consultin Limited & another (Cause E098 of 2025) [2026] KEELRC 1334 (KLR) (20 May 2026) (Judgment)

Kenya Engineering Workers Union v Morals Business Consultin Limited & another (Cause E098 of 2025) [2026] KEELRC 1334 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1334 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Cause E098 of 2025 Nzioki wa Makau, J May 20, 2026 Between Kenya Engineering Workers Union Claimant and Morals Business Consultin Limited 1st Respondent Rok Industries Limited 2nd Respondent Judgment 1.The Claimant instituted this suit via a Memorandum of Claim dated 5th November 2025 identifying the issue in dispute as the Respondents’ refusal to execute a recognition agreement. The Claimant seeks an order compelling the Respondents to sign the recognition agreement within the shortest time possible together with costs of the suit and any other relief that the Court may deem fit to grant. The Claimant’s case is that in December 2024 it recruited 25 employees of the 1st Respondent into its membership and subsequently forwarded duly executed check-off forms to the 1st Respondent on 18th January 2025. It avers that by a letter dated 17th April 2025, it forwarded a draft Recognition Agreement to the Respondents with a proposal for a meeting to facilitate its execution, but the Respondents declined to sign the agreement. According to the Claimant, despite several reminders and attempts to convene a joint meeting, the Respondents failed to cooperate, thereby prompting it to report a trade dispute pursuant to section 62 of the Labour Relations Act. The Claimant further states that the dispute was accepted by the Ministry under reference number MLSP/LD/IR/13/25/2025 and that upon conciliation, the conciliator recommended that the Recognition Agreement be signed forthwith. It is therefore the Claimant’s position that having recruited 25 out of the Respondents’ workforce of 30 employees, representing 84% of the unionisable employees, the Respondents’ refusal to accord recognition violates section 54 of the Labour Relations Act as well as Articles 36, 41 and 47 of the Constitution. 2.In opposition to the claim, the 1st Respondent filed a Memorandum of Response dated 15th December 2025 generally denying the averments in the Memorandum of Claim. While acknowledging receipt of both the draft Recognition Agreement and the Claimant’s subsequent reminders, the 1st Respondent maintains that the Claimant had not attained the statutory threshold for recognition. It equally denies that any statutory or constitutional provisions were violated. 3.The 2nd Respondent, for its part, filed a Memorandum of Response dated 2nd March 2026. It contends that no labour relations exist between itself and the Claimant, a fact which it asserts is acknowledged at paragraph 2.8 of the Memorandum of Claim. According to the 2nd Respondent, its relationship with the 1st Respondent is purely one of outsourcing, under which the 1st Respondent supplies labour. It therefore maintains that no valid cause of action has been disclosed against it, particularly because the Claimant does not seek recognition from the 2nd Respondent. The 2nd Respondent further avers that no basis has been laid to warrant disclosure of the outsourcing contract to the Claimant and consequently urges the Court to dismiss the claim against it. 4.On 11th March 2026, the Court directed that the matter be disposed of on the basis of the pleadings, documents and written submissions filed pursuant to Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024. However, only the Claimant and the 1st Respondent filed written submissions. Claimant’s Submissions 5.From the outset the Claimant urges the court to consider the undisputed fact that it recruited 25 of the 1st Respondent’s employees into its membership as evinced by the check-off forms annexed to the Memorandum of Claim and as admitted by the 1st Respondent in its response. It further highlights the fact that the 1st Respondent was served with a draft Recognition Agreement similarly admitted by the 1st Respondent. Additionally, the Claimant asserts that the 1st Respondent’s contention that it had 46 employees has not been proven. The Claimant also draws attention to the payment list for May 2025 evincing salary payment by the 1st Respondent to only 25 employees through Private Bank. Lastly, it points to Appendix KW7 attached to the 1st Respondents Memorandum of Response which according to the Claimant lists 36 employees belonging to the 1st Respondent and 15 employees belonging to the 2nd Respondent. The Claimant also points to deduction sheets allegedly showing deduction and remittance of union dues in favour of the Claimant union. 6.On whether the inclusion of the 2nd Respondent in the proceedings was warranted, the Claimant submits in the affirmative, arguing that the 2nd Respondent is responsible for payment of salaries and remittance of union dues either directly or through the 1st Respondent. Reliance is placed on Order 1 Rule 10 of the Civil Procedure Rules, 2010, which empowers the Court to join any party necessary for the effectual determination of the dispute. The Claimant cites Christopher Neil Pape v Minolta Limited & another [2022] eKLR, in support of the proposition that a necessary party may properly be joined in proceedings. The Claimant further submits that since the purpose of a Recognition Agreement under section 54 of the Labour Relations Act is to facilitate collective bargaining negotiations, and since the 2nd Respondent provides salaries, allowances and terms of service to the employees, its participation in the proceedings is necessary. 7.As to whether the prayers sought are merited, the Claimant submits that it has satisfied all the requirements for recognition under section 54 of the Labour Relations Act, namely that it is the relevant sector union, there is no rival union, and it has attained a simple majority of unionisable employees. The Claimant points out that the Respondents did not dispute that there is no rival union and that the Claimant is the relevant sector union. 8.With regard to the issue of simple majority, the Claimant submits that even if the Court were to adopt the 1st Respondent’s alleged workforce of 46 employees, the Claimant would still have attained the statutory threshold by virtue of having recruited 25 employees, representing approximately 57% of the workforce. The Claimant further argues that the 15 employees attributed to the 2nd Respondent ought not to be included in calculating the workforce of the 1st Respondent since the two Respondents are separate legal entities. It additionally submits that the union dues deduction sheets produced before Court demonstrate that out of the 36 employees attributed to the 1st Respondent, 26 were members of the Claimant union. 9.The Claimant maintains that none of the employees whose names appear on the check-off forms has complained regarding deduction of union dues, thereby rendering the Respondents’ challenge to the authenticity of the membership untenable. It is further submitted that the 2nd Respondent’s core business falls within the engineering sector, which is covered under the Claimant union’s constitution, and that no evidence was tendered to controvert that position. 10.Finally, the Claimant urges the Court to take into account the findings contained in the conciliator’s report annexed to the Memorandum of Claim, wherein the conciliator observed that the Respondents had failed to provide proof of the number of employees. Consequently, the Claimant prays that the suit be allowed as pleaded together with costs assessed at Kshs. 75,000/- pursuant to Rule 70 of the Employment and Labour Relations Court (Procedure) Rules, 2024. 1st Respondent’s Submissions 11.In response, the 1st Respondent identifies three issues for determination, namely:a.whether the check-off forms are valid within the meaning of section 48 of the Labour Relations Act, 2007 and the Third Schedule thereto;b.whether a recognition agreement is a prerequisite for deduction and remittance of trade union dues; and lastly,c.whether the Claimant union attained the simple majority threshold contemplated under section 54 of the Labour Relations Act, 2007. 12.On the validity of the check-off forms, the 1st Respondent submits that the same are defective and non-compliant with section 48 of the Labour Relations Act and the Third Schedule thereto. It contends that the forms merely contain serial numbers from 1 to 25 and fail to indicate essential particulars such as union membership numbers, names of members, signatures and dates. The 1st Respondent further asserts that the Claimant failed to produce receipts evincing payment of entrance fees, joining fees or membership subscriptions as required under Rule 3(b) of the Claimant union’s constitution, and therefore failed to prove that the employees in question were bona fide union members. On that basis, the 1st Respondent contends that the claim lacks merit. 13.As to whether a recognition agreement is a prerequisite for deduction and remittance of trade union dues, the 1st Respondent submits that compliance with deduction and remittance obligations does not automatically entitle the Claimant to recognition. It asserts that the purpose of a recognition agreement is to confer upon a trade union the right to negotiate a collective bargaining agreement, whereas deduction and remittance of union dues arise from ministerial directives and employees’ authorization through signed check-off forms. 14.As to whether the Claimant attained the simple majority threshold under section 54 of the Labour Relations Act, the 1st Respondent reiterates that recognition can only issue where a trade union represents a simple majority of unionisable employees. In conclusion the 1st Respondent urges the court to dismiss the suit with costs. Disposition 15.The Court has considered the material before it – the evidence adduced as well as the arguments advanced supported by statute and case law. The following is my determination of the matter. The claim herein is one dealing with the recognition of the trade union for purposes of collective bargaining agreement. Once a trade union recruits members, the employer is required to effect deductions (check-off) where the Union has 5 or more members in the enterprise. The law basically provides that the Minister may make an order in writing with respect to any trade union of employees requiring any employer who employs not less than five members of that trade union—(a) to deduct every month a specified sum in respect of trade union dues from the wages of his employees who are members of that trade union. 16.It is therefore not in doubt that union dues can be deducted from the employees who express their intention through the schema under Part VI of the Labour Relations Act. Under section 48 of the Labour Relations Act, the law stipulates the employer is to effect the deductions once the list of employees who have joined the relevant Union is presented in Form S. The provision of section 48(3) is as follows:(3)An employer in respect of whom the Minister has issued an order under subsection (2) shall commence deducting the trade union dues from an employee’s wages within thirty days of the trade union serving a notice in Form S set out in the Third Schedule signed by the employees in respect of whom the employer is required to make a deduction. 17.The referenced portion of the law means the process of effecting deductions is through Form S. Form S is a form sui generis in nature as it lets the employer know the names of the employees recruited. A sample of the said Form S is availed in the Third Schedule of the Labour Relations Act. It appears as follows:Form S (s.48)Notice To Employer Authorizing Deductions To ................................................... ...................................................1.In pursuance of an order made with effect from .................................. by the Minister under section 48 of the Labour Relations Act, I, on behalf of the .................................. (trade union), hereby request you to deduct from the wages of the employees listed in this Notice, being employees who have acknowledged membership of the ................ (trade union), the sum of shillings ............... monthly as their current trade union dues.2.The total amount of deduction so made is required to be proportioned and transmitted as follows:(a)......... per cent thereof to the ............. (trade union) by crossed cheque made payable into the ............ account of that trade union at the ................Bank.(b).............. per cent thereof to the ............... (federation) by crossed cheque made payable into the .................. account of that federation at the ............... Bank.3.(1)The remittances should be made, and notices thereof should be delivered, not later than the ........... day of the month next after the month in respect of which the deductions are made. (2) Notices of remittances should be delivered to the ..............(trade union) at ................. (address), and to the ..............(federation) at ................... (address). (3) The above-named trade union and federation are required by Section 50 of the Labour Relations Act to deliver a receipt for every remittance within fourteen days of receipt of notice of such remittance. (4) The employer to whom this notice is addressed is required to make returns to the Registrar of Trade Unions of all payments made hereunder, in accordance with the order of the Minister.4.This notice applies to employees' wages payable by you at the end of the month next following the month shown in the date hereof. Date .............................. 20 ............................................ Secretary-General............. ...... ..... Trade unionCopy To: Registrar of Trade Unions,0. Box 30031, Nairobi.Employees in respect of whom deductions from wages are required to be madeWe, the undersigned, hereby acknowledge that we are members of the ..................... (trade union): Union Membership Number Name of Members Signatures Date 18.The Court has set out in full detail the Form S. The Form above, clearly shows that the details needed and which must be included are the union membership number, the names of members and a date must be given. Any form that deviates from this golden standard is therefore not in conformity with the law. The deductions are what exist as the precursor to the negotiations that the parties can enter into for purposes of recognition of the trade union and thereafter engage in collective bargaining. 19.The Claimant herein did not present a lawful Form S but chose to issue a plain document with serialized names and signatures. There are no union member numbers to indicate that the employees have been entered in a register of union members. That Form adduced in evidence before this Court, cannot, in my view, be the basis for the recognition sought by the Union. The Union members must be able to state they are union member this, or that. Granted the Form S availed does not conform to the law, I have no option but to dismiss the suit, albeit order that each party bears their own costs.It is so ordered. DATED AND DELIVERED AT KISUMU THIS 20TH DAY OF MAY 2026NZIOKI WA MAKAU, MCIARB.JUDGE