https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2063

Kenya Engineering Workers Union v M/s Jinsen International Wood Industry Company Limited & another (Cause E087 of 2024) [2026] KEELRC 2063 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2063 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Cause E087 of 2024 MA Onyango, J July 16, 2026 Between Kenya Engineering Workers Union Claimant and M/s Jinsen International Wood Industry Company Limited Respondent and Kenya Building, Construction, Timber Furniture Employees Union Interested Party Judgment 1.The Claimant is a trade union duly registered under the Labour Relations Act to represent employees falling within the membership clause of its Constitution. 2.The Respondent is a limited liability company incorporated in the Republic of Kenya under the Companies Act. 3.The Interested Party is also a trade union registered under the Labour Relations Act and mandated to represent employees within its registered sector. 4.In its Memorandum of Claim dated 8th November 2024, the Claimant avers that in August 2024 it recruited 106 of the Respondent's employees into its membership. 5.The Claimant further avers that, pursuant to section 48 of the Labour Relations Act, it forwarded to the Respondent, vide a letter dated 29th August 2024, the duly executed check-off forms together with the Minister's order authorizing the deduction and remittance of union dues. 6.It is further averred that, pursuant to section 54 of the Labour Relations Act, the Claimant forwarded to the Respondent, under a separate letter of the same date, a draft Recognition Agreement and invited the Respondent to a meeting for purposes of executing the Agreement. 7.It is the Claimant’s case that the Respondent has failed and/or refused to deduct and remit union dues and has also declined to execute the Recognition Agreement, contrary to the mandatory provisions of sections 48 and 54 of the Labour Relations Act. 8.The Claimant further alleges that the Respondent remunerates both its permanent employees and those engaged on fixed-term contracts at rates below those prescribed under the applicable Regulation of Wages (General) Order and in addition, does not pay house allowance as required under section 31 of the Employment Act. 9.The Claimant further contends that upon being served with the check-off forms, the Respondent embarked on a campaign of intimidation and victimization against employees who had participated in the Claimant's recruitment drive, including the use of police officers and the unlawful termination of the employment contracts of some of those employees. 10.Consequently, the Claimant seeks the following reliefs: -i.A declaration that the Respondent's actions are unfair and unlawful.ii.An order compelling the Respondent to recognise the Claimant for purposes of collective bargaining and to execute a Recognition Agreement within thirty (30) days of the delivery of judgment.iii.An order directing the Respondent to adjust the wages of all unionisable employees in accordance with the applicable Government General Wages Order and to pay all resultant underpayments.iv.An order directing the Respondent to commence the deduction and remittance of union dues in respect of all employees who joined the Claimant and to pay union dues arrears of Kshs. 36,847 per month from September 2024 until compliance.v.An order restraining the Respondent, its servants or agents from victimising the Claimant's members through termination, dismissal, redundancy or any other adverse employment action on account of their trade union membership or activities.vi.An order directing the Respondent to regularise the employment of all employees serving on implied permanent terms by issuing them with appropriate letters of appointment reflecting their respective periods of service.vii.An order directing the Respondent to effect all statutory deductions and remit the same to the relevant statutory bodies.viii.Costs of the suit.ix.Any other relief that the Court may deem fit and just to grant. 11.Simultaneously with the Memorandum of Claim, the Claimant filed a Notice of Motion dated 8th November 2024 seeking, inter alia:i.That, this Application be heard ex-parte in the first instance and certified as urgent and heard on priority basis.ii.That the Honourable Court do and hereby issue an Order against the Respondent herein to effect union dues deduction and remittance from all her employees who have duly signed the check off forms (Form 'S) in favour of the Claimant union pending the hearing and determination of this suit.iii.That, the Honourable Court does and hereby issue an Order against the Respondent to adjust the salaries of all her unionisable employees to the current Government General Order and 15% of the basic salaries as House allowance pending the hearing and determination of this suit.iv.That, the Honourable Court do and hereby issue an Order against the Respondent from victimizing the Claimant’s members by way of termination, dismissal and or redundancy both on fixed term contracts and implied permanent contracts. 11.Upon considering that application the court granted prayers ii, iii and iv in the interim. The Respondent’s case 11.The Respondent filed a Response to the Memorandum of Claim dated 23rd October 2025 and averred that it was approached by officials of the Interested Party who informed it that the Interested Party had successfully recruited 220 out of the Respondent's approximately 300 employees into its membership. The Respondent states that the Interested Party thereafter submitted a draft Recognition Agreement to the Respondent for execution with a view to commencing negotiations for a Collective Bargaining Agreement. 12.According to the Respondent, on 9th October 2024 it executed a Recognition Agreement with the Interested Party. Further, that pursuant to the Recognition Agreement and as part of the collective bargaining process, it adjusted its employees' wages in accordance with the applicable Regulation of Wages (General) Order and incorporated house allowance into employees' remuneration. 13.The Respondent contends that in November 2024, the Claimant approached it claiming to represent the same employees who were already represented by the Interested Party whereupon it informed the Claimant of the existence of the Recognition Agreement between itself and the Interested Party. 14.It is the Respondent’s case that it has already deducted and remitted union dues on behalf of members of the Interested Party. 15.On this basis, the Respondent maintains that all its actions have been guided by section 54 of the Labour Relations Act and that as such, the prayers sought by the Claimant in its Memorandum of Claim are not merited. The court was urged to dismiss the Claimant’s suit with costs. The Interested Party's Case 11.The Interested Party filed its Memorandum of Response dated 27th October 2025, in which it denied the Claimant's assertion that it had recruited 106 of the Respondent's employees into its membership. It maintains that the said 106 employees remain bona fide members of the Interested Party. 12.The Interested Party further avers that the Respondent has consistently deducted and remitted union dues in respect of its members, thereby affirming its continued representational status within the Respondent's workforce. 13.It contends that the ongoing negotiations for the conclusion of a Collective Bargaining Agreement between itself and the Respondent have been disrupted by what it describes as the Claimant's unlawful interference with the industrial harmony that had been established through the Interested Party's organisation of the Respondent's unionisable employees. 14.The Interested Party further states that all workplace issues affecting its unionisable members employed by the Respondent will be comprehensively addressed through the collective bargaining process. 15.In addition, the Interested Party avers that the Claimant lacks the requisite locus standi to represent employees in the wood sector in which the Respondent operates, as that sector falls outside the Claimant's registered scope of representation. 16.In the end, the Interested Party maintained that the Claimant is not entitled to any of the reliefs sought in the Memorandum of Claim and urged this Court to dismiss the suit with costs. 17.The suit was disposed of by way of written submissions. The Claimant's submissions are dated 2nd June 2026, the Respondent's submissions are dated 10th May 2026, while the Interested Party's submissions are dated 18th June 2026. The Claimant’s submissions 11.In its submissions, the Claimant framed the issues for determination to be:-i.Whether there is a duly signed and valid Recognition Agreement between the Respondent and Interested Party hereinii.Whether the money being deducted by the Respondents for their employees is in form of union dues or notiii.Whether the Interested Party herein has the interest of the Respondent’s unionsable employees at heartiv.Whether the Trade Union Constitution can supersede the Country’s constitutionv.Whether the Honourable Court’s orders issued on the 12th November 2024 are still in force and should be enforcedvi.Whether the Memorandum of claim is defectivevii.Whether the prayers sought in the Memorandum of Claim are merited 11.On the issue of whether there exists a valid and duly executed Recognition Agreement between the Respondent and the Interested Party, the Claimant submitted that the purported Recognition Agreement is invalid for non-compliance with section 54 of the Labour Relations Act. It argued that the Agreement was executed before the Interested Party had served the Respondent with the requisite check-off forms, thereby casting doubt on whether the Interested Party had attained the statutory threshold for recognition at the time the Agreement was executed. The Claimant further contended that one of the signatories to the Agreement did not possess a valid work permit, rendering the execution of the Agreement unlawful. 12.On the second issue, the Claimant submitted that the deductions remitted to the Interested Party did not constitute lawful union dues within the meaning of section 48 of the Labour Relations Act. It contended that the deductions were effected pursuant to a flat-rate arrangement of Kshs. 300 agreed upon between the Respondent and the Interested Party, rather than in accordance with a Ministerial Order and duly executed check-off forms as required by law. The Claimant further submitted that the deductions commenced before the requisite check-off forms had been served upon the Respondent and were effected in respect of employees who had neither executed check-off forms nor remained members of the Interested Party, having subsequently withdrawn their membership. It therefore urged the Court to find that the deductions were unlawful and amounted to an illegal levy imposed upon the Respondent's employees. 13.The Claimant further submitted that the Interested Party had failed to effectively safeguard the interests of the Respondent's unionisable employees. It argued that, notwithstanding the existence of a Recognition Agreement, many employees remained engaged on casual or fixed-term contracts, continued to earn wages below the prescribed statutory minimum, and had not benefited from the negotiation and conclusion of a Collective Bargaining Agreement. The Claimant further contended that the majority of the employees continued to be designated as general labourers without any corresponding improvement in their terms and conditions of service. 14.On the issue whether a trade union constitution could override the Constitution of Kenya, the Claimant submitted that Article 41 of the Constitution guarantees every employee the freedom to join a trade union of his or her choice. The Claimant submitted that any limitation contained in a trade union constitution restricting membership to a particular sector would be inconsistent with the Constitution and therefore void to the extent of the inconsistency. 15.Regarding the interlocutory orders issued on 12th November 2024, the Claimant submitted that the orders remained valid and enforceable, having neither been reviewed nor set aside. The Claimant therefore urged the Court to enforce the orders, contending that the Respondent had deliberately failed to comply with them. 16.On the issue whether its Memorandum of Claim is defective, the Claimant submitted that the suit was properly before the Court and that any procedural objections ought to be disregarded pursuant to Article 159(2)(d) of the Constitution. The Claimant further asserted that both the Respondent and the Interested Party had themselves filed their responses out of time without leave of the Court. 17.Lastly, on the issue of whether the reliefs sought are merited, the Claimant submitted that the Respondent had consistently underpaid its employees in contravention of the applicable Regulation of Wages Order, failed to pay house allowance, neglected to remit statutory deductions, and unlawfully retained employees on casual terms contrary to section 37 of the Employment Act. The Claimant further contended that the Respondent had victimized employees on account of their trade union activities. On the basis of those alleged violations, the Claimant urged the Court to grant the reliefs sought in its Memorandum of Claim. 18.In addition, the Claimant submitted that it had recruited a majority of the Respondent's unionisable employees and had fully complied with section 48 of the Labour Relations Act by forwarding duly executed check-off forms together with the Minister's Order. It argued that the Respondent had unlawfully failed to commence deductions and remittance of union dues despite a valid Court order directing it to do so. The Claimant therefore urged the Court to order the Respondent to remit the outstanding union dues together with the accrued arrears. 19.Consequently, the Claimant submitted that it had satisfied the statutory requirements for recognition under section 54 of the Labour Relations Act, having recruited more than a simple majority of the Respondent's unionisable employees. 20.The Court was urged the Court to find that the purported Recognition Agreement between the Respondent and the Interested Party was invalid and to grant the orders sought in the Memorandum of Claim together with costs. The Respondent’s submissions 11.In its written submissions, the Respondent identified the following issues for determination: -i.Whether the Memorandum of Claim and the Claimant's Witness Sworn Affidavit are defectiveii.Whether the Claimant is entitled to the reliefs sought; andiii.Who should bear the costs of the suit. 11.On the first issue, the Respondent submitted that the Memorandum of Claim was incompetent for failure to comply with the Employment and Labour Relations Court (Procedure) Rules. It submitted that although the Claimant filed a Memorandum of Claim and a verifying affidavit sworn by its General Secretary, it failed to file a witness statement as required under Rule 14(8) of the Employment and Labour Relations Court (Procedure) Rules. 12.The Respondent further contended that the Witness Sworn Affidavit filed by one Jonathan Kakai Luka was incompetent as he was neither an advocate, an office bearer nor an official of the Claimant, nor had he demonstrated that he was authorised to act on behalf of the Claimant as contemplated under section 22 of the Employment and Labour Relations Court Act. 13.Consequently, the Respondent urged the Court to strike out both the Witness Sworn Affidavit and the Memorandum of Claim. 14.On whether the Claimant is entitled to the reliefs sought, the Respondent submitted that the Claimant had failed to discharge the burden of proof and that its case consisted of mere allegations unsupported by admissible evidence. It maintained that the Respondent is a duly incorporated company engaged in carpentry and woodwork activities and had lawfully executed a Recognition Agreement with the Interested Party on 9th October 2024. The Respondent further submitted that following the execution of the Recognition Agreement, it adjusted employees' salaries in accordance with the applicable Regulation of Wages (General) Order. 15.It is the Respondent’s further submission that the Claimant approached it after the execution of the Recognition Agreement claiming to represent employees who were already represented by the Interested Party. 16.According to the Respondent, its business does not fall within the sectors covered by the Claimant's Constitution, which limits membership to employees engaged in the general mechanical engineering and metal allied manufacturing industries. Accordingly, the Respondent contended that the Claimant was seeking to recruit members contrary to its own Constitution and was inviting the Court to sanction an illegality. On this basis, the Respondent maintained that the Claimant was undeserving of the orders sought. 17.The Respondent further submitted that the Recognition Agreement executed between itself and the Interested Party constituted a valid contractual arrangement which ought to be respected by the Court. Relying on the decision in National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2002] 2 EA 503, it argued that courts should not rewrite contracts voluntarily entered into by parties unless fraud, coercion or undue influence has been pleaded and proved. 18.With respect to the Claimant's prayer seeking regularization of employees allegedly serving on implied permanent contracts, the Respondent submitted that the Claimant had neither defined nor demonstrated the existence of such contracts. It maintained that all its contracts of employment comply with the law and were voluntarily entered into by the parties. 19.The Respondent therefore maintained that the Memorandum of Claim was devoid of merit, unsupported by evidence and ought to be struck out with costs. The Interested Party’s submissions 46.On its part, the Interested Party identified the following issues for determination to be: -i.Whether the Claimant is the rightful trade union to represent employees in the sector in which the Respondent operatesii.Whether the Claimant is entitled to the reliefs sought in the Memorandum of Claim. 47.On the first issue, the Interested Party submitted that before a trade union can demand recognition from an employer, it must first establish that the employer operates within the sector in respect of which the trade union is registered. It relied on sections 54(2) and 54(8) of the Labour Relations Act, arguing that in determining a dispute relating to recognition, the Court must take into account the sector in which the employer operates. 48.The Interested Party submitted that the Respondent's CR-12 demonstrates that its principal business is carpentry and woodwork activities while on the other hand, the Claimant's Constitution limits its membership to unionisable employees engaged in the general mechanical engineering and metal allied manufacturing industries. In this regard, the Interested Party argued that the Respondent's business falls outside the Claimant's constitutional scope of representation and that the Claimant consequently lacks the requisite locus standi to recruit the Respondent's employees or seek recognition. 49.The Interested Party further submitted that although the Claimant relied on Article 41 of the Constitution to justify the recruitment of the Respondent's employees, the constitutional right to freedom of association does not entitle a trade union to recruit employees outside the sector for which it is registered. It argued that while the Claimant had asserted that its own membership clause was inconsistent with the Constitution, section 54 of the Labour Relations Act nevertheless remains binding and requires the Court to consider the sector in which an employer operates when determining disputes relating to recognition. 50.In support of this position, reliance was placed on the decision in Kenya Chemical & Allied Workers Union v Kenya Plantation & Agricultural Workers Union & 2 Others (Civil Appeal No. 197 of 2019), wherein the Court of Appeal affirmed that although employees are free to join a trade union of their choice, that freedom is necessarily limited by the industry or sector in which they work. It submitted that the Court of Appeal upheld the principle that a trade union cannot recruit employees whose employer operates outside the sector covered by its constitution. 51.The Interested Party submitted that the Respondent operates in the timber and furniture sector and that, unlike the Claimant, it is the duly registered trade union mandated to represent employees in that sector. The case of Kenya Engineering Workers Union v Steel Structures Limited; Kenya Building, Construction, Timber & Furniture Industries Employees Union (Interested Party) [2020] KEELRC 1197 (KLR), was cited in support of the position that the Claimant could not recruit employees working in a sector falling within the constitutional mandate of another trade union. 52.On whether the Claimant is entitled to the reliefs sought, the Interested Party submitted that having failed to establish that it is the proper trade union to represent the Respondent's employees, the Claimant is not entitled to any of the orders sought in the Memorandum of Claim. 53.The Interested Party maintained that the Respondent has already recognised it through a valid Recognition Agreement and that negotiations towards a Collective Bargaining Agreement are already underway. It further submitted that the Respondent has demonstrated compliance with the applicable minimum wage guidelines pending the conclusion of the Collective Bargaining Agreement. 54.The Court was thus urged to dismiss the Claimant’s suit with costs. Determination 55.I have carefully considered the pleadings, the rival submissions of the parties and the authorities cited. In my view, the issues arising for determination are: -i.Whether the Claimant has the legal mandate to recruit and represent the Respondent's unionisable employees.ii.Whether the Claimant satisfied the requirements for recognition under section 54 of the Labour Relations Act.iii.Whether the Respondent violated section 48 of the Labour Relations Act by failing to deduct and remit union dues to the Claimant.iv.Whether the Claimant is entitled to the reliefs sought.v.Who should bear the costs of the suit. Whether the Claimant has the legal mandate to recruit and represent the Respondent's unionisable employees 56.The starting point in determining this dispute is whether the Claimant was entitled, in law, to recruit the Respondent's unionisable employees. This is because both the Claimant's claim for recognition under section 54 of the Labour Relations Act and its claim for deduction and remittance of union dues under section 48 are predicated upon the legality of its recruitment of the Respondent's employees. 57.The Claimant contends that it recruited the Respondent's employees into its membership and that such recruitment was protected under Article 41 of the Constitution, which guarantees every employee the freedom to join a trade union of his or her choice. The Claimant further argues that any limitation contained in its Constitution restricting membership to a particular sector is inconsistent with the constitution and is therefore void. 58.The Respondent and the Interested Party take a contrary position. Their contention is that the Respondent operates in the timber and furniture sector while the Claimant's constitution confines its membership to employees engaged in the general mechanical engineering and metal allied manufacturing industries. Consequently, they argue that the Claimant lacks the legal capacity to recruit the Respondent's employees or seek recognition. 59.Section 54(2) of the Labour Relations Act provides that an employer shall recognise a trade union for purposes of collective bargaining where the trade union represents a simple majority of the unionisable employees employed by the employer within a sector. Further, section 54(8) requires the Court, in determining disputes relating to recognition, to take into account the sector in which the employer operates. 60.The relevant provision of the law stipulate as follows: -“2.A group of employers, or an employers’ organisation, including an organisation of employers in the public sector, shall recognise a trade union for the purposes of collective bargaining if the trade union represents a simple majority of unionisable employees employed by the group of employers or the employers who are members of the employers’ organisation within a sector….8.When determining a dispute under this section, the Industrial Court shall take into account the sector in which the employer operates and the model recognition agreement published by the Minister.” 61.It therefore follows that the Court must first be satisfied that the trade union is registered to represent employees within the sector in which the employer operates before it can consider whether a union meets the threshold for recognition. Accordingly, the question of sectoral representation is a jurisdictional threshold which must be resolved before considering whether the statutory threshold for recognition has been attained 62.The evidence on record establishes that the Respondent is incorporated as Jinseng International Wood Industry Limited. The CR-12 produced by the Respondent identifies its principal business as carpentry and other woodwork-related activities. Further, Rule 1 of the Interested Party's Constitution, appearing at page 10 of the Interested Party's bundle of documents, demonstrates that the Interested Party is registered to represent employees engaged in the timber and furniture sector. This evidence supports the Interested Party's assertion that the Respondent operates within the sector falling under its registered scope of representation. 63.The Claimant did not place before the Court any evidence demonstrating that the Respondent's business falls within that sector or that its constitutional scope of representation extends to timber and wood industries. 64.Although the Claimant argued that Article 41 of the Constitution entitles every employee to join a trade union of his or her choice, that right is exercised within the statutory framework established by the Labour Relations Act. Indeed, section 54 expressly requires the Court to take into account the sector in which an employer operates when determining disputes concerning recognition. 65.In the case cited by the Interested Party, Kenya Chemical & Allied Workers Union v Kenya Plantation & Agricultural Workers Union & 2 others [2023] KECA 1493 (KLR), the Court of Appeal held:-“20.Accordingly, a trade union seeking to be recognized by an employer has to meet the threshold of having majority membership of the particular institution. Further, when resolving a dispute in that respect, courts are enjoined to consider the sector in which the employer operates.21.I note that while determining the matter in contention herein, the learned judge correctly observed that, while an employee is free to join any union of his choice, that freedom is necessarily limited by reference to the industry in which the employee works. In ascertaining the sector in which the 2nd respondent operates, the judge considered the membership clause of both the appellant and the 1st respondent, and the demarcation report from the County Labour Officer, which revealed that the 2nd respondent largely operated in the agricultural sector. The learned judge thus concluded that the appellant’s constitution does not permit it to recruit employees of the 2nd respondent.22.Having reviewed the record, I come to the same conclusion as the learned judge and find the limitation of the 2nd respondent to the 1st respondent reasonable. I am not at all persuaded that the mere fact of utilizing the chemical lime in its agricultural activities somehow transformed the 2nd respondent into an entity in the chemical industry. Consequently, I have no basis for interfering with her judgment.” 66.I respectfully adopt that reasoning. While employees enjoy the constitutional freedom to join a trade union of their choice, that choice must be exercised within the framework established under the Labour Relations Act. To hold otherwise would render the sectoral organisation of trade unions under the Act meaningless and defeat the purpose of section 54. 67.In the circumstances, I find that the Claimant has failed to demonstrate that it is the appropriate trade union mandated to represent employees working in the Respondent's sector. Consequently, the Claimant lacks the legal basis to recruit the Respondent's unionisable employees for purposes of seeking recognition under section 54 of the Labour Relations Act. 68.Having found that the Claimant lacks the legal mandate to recruit the Respondent's unionisable employees, it follows that its claim cannot succeed. The Court's mandate is to determine the live issues in controversy that are necessary for the resolution of the dispute before it. It is therefore neither necessary nor appropriate to pronounce itself on issues whose determination would have no bearing on the outcome of the case. 69.Accordingly, the issues relating to the alleged failure to deduct and remit union dues, the validity of the deductions made in favour of the Interested Party, the alleged underpayment of employees, the regularization of employment, the remittance of statutory deductions, and the other ancillary reliefs sought by the Claimant are rendered moot by the Court's finding on the question of representation. Any determination of those issues would serve no practical purpose and would amount to an academic exercise. 70.Consequently, the Claimant’s Memorandum of Claim dated 8th November 2024 is hereby dismissed. 71.Each party shall bear its costs of this suit. DATED, DELIVERED AND SIGNED ON THIS 16TH DAY OF JULY 2026.M. ONYANGOJUDGE