https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2282

Kenya Petroleum Oil Workers' Union v Green Wells Energies Ltd (Cause E102 of 2025) [2026] KEELRC 2282 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2282 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kisumu Cause E102 of 2025 Nzioki wa Makau, J July 30, 2026 Between Kenya Petroleum Oil Workers' Union Claimant and Green Wells Energies Ltd Respondent Judgment 1.The Claimant instituted this suit vide a Memorandum of Claim dated 4th November 2025 identifying the issue in dispute as the Respondent’s refusal to finalize CBA negotiations for the period 2023 to 2026. The Claimant avers that its previous Recognition and Collective Bargaining Agreement with the Respondent expired on 31st December 2022 and on 22nd July 2024 it submitted its draft for the period 2023 -2026 to the Respondent for counter proposals. It further avers that it also sought for the audited financial report for the year 2019 and 2022. The Claimant contends that despite numerous reminders the Respondent refused to act, forcing it to lodge a dispute with the Ministry of Labour and Social Protection on 27th November 2024. Thereafter on 2nd April 2025 it is the Claimant’s case that the Respondent informed the conciliator that it was not going to attend the conciliation as it was allegedly awaiting a determination from the National Labour Board on its application to revoke the Recognition Agreement. In view of this fact the Claimant states that the conciliator issued a certificate of unresolved trade dispute finding that; there was a valid recognition agreement requiring parties to negotiate, the Respondent had denied employees their rights under section 4 of the Labour Relations Act; the Respondent’s request for revocation of the Recognition Agreement was pending determination, and the Respondent was not willing to negotiate the CBA until its request for revocation had been determined. 2.Consequently, the Claimant seeks the following reliefs:a.An order directing the Respondent to negotiate the CBA for the period between 1st January 2023 and 31st December 2026;b.An order compelling the Respondent to furnish it with the audited financial statement for the period 2019 to 2022;c.An order directing the adoption of its revised proposals and subsequent registration thereof;d.An order for an expert report from the Ministry of Labour and Social Protection to assist in determination of the claim;e.Any other relief the court deems fit to grant; andf.Costs of the claim. 3.Opposing the suit the Respondent filed a Memorandum of Response dated 25th February 2026. It admits the background facts regarding the parties’ negotiations for a Collective Bargaining Agreement (CBA) but contends that the Claimant’s account is incomplete. It states that the parties executed a Recognition Agreement on 20th July 2017 and subsequently negotiated CBAs, the last of which covered the period 1st January 2021 to 31st December 2022. However when negotiations for the 2023–2024 CBA arose, the Respondent contends that it declined to negotiate on the ground that the Claimant had ceased to represent a simple majority of the Respondent’s unionisable employees as required under section 54(1) of the Labour Relations Act, 2007, thereby extinguishing its entitlement to continued recognition and collective bargaining. The Respondent states that the dispute was referred to conciliation and, after conciliation failed, the Claimant filed Kisumu ELRC Cause No. E059 of 2023 seeking orders compelling negotiation and execution of the CBA. The Respondent opposed that claim and filed a counterclaim seeking declarations that the Recognition Agreement had been revoked and that the Claimant had no right to continue negotiating or enforcing any subsequent CBA unless it attained the statutory threshold and entered into a fresh Recognition Agreement. 4.The Respondent further states that the Court dismissed both the Claim and the Counterclaim in a judgment delivered on 6th December 2023, holding that the Claimant had not proved its claim and that the Respondent ought first to pursue revocation before the National Labour Board under section 54(5) of the Labour Relations Act. Following that judgment, the Respondent avers that it applied to the National Labour Board on 8th December 2023 for revocation of the Recognition Agreement. The Board constituted a Tribunal, the parties filed their documents, and the matter was heard on 16th December 2024, but the Tribunal has not yet delivered its ruling despite repeated requests by the Respondent. The Respondent contends that, notwithstanding the pending proceedings before the National Labour Board Tribunal, the Claimant has continued to demand negotiations for a fresh CBA for the period 2023–2026 and has filed the present suit seeking substantially the same reliefs that were previously litigated. It argues that the pending revocation proceedings constitute the gravamen of the dispute, rendering the present suit, the referral to the Cabinet Secretary, the conciliation process, and any decisions arising therefrom an abuse of process, contrary to Articles 47 and 50(1) of the Constitution and the doctrine of lis pendens. The Respondent therefore maintains that the suit is misconceived, filed in bad faith, discloses no cause of action, and that this Court lacks jurisdiction to entertain it. It prays that the Claim be struck out with costs. 5.At the close of hearing parties filed written submissions. Claimant’s Submissions 6.The Claimant identifies the following issues for determination which according to it are dispositive of the suit:(a)Whether the Respondent is legally obligated under the Labour Relations Act, 2007 and the Constitution of Kenya, 2010 to negotiate a successor Collective Bargaining Agreement (CBA) for the period 1st January 2023 to 31st December 2026;(b)Whether the pendency of the Respondent’s application before the National Labour Board for revocation of the Recognition Agreement bars the commencement or continuation of CBA negotiations;(c)Whether the Respondent is bound to furnish the Claimant with audited financial statements for the years 2019 to 2022 to facilitate effective collective bargaining;(d)Whether the Court should refer the matter to the Central Planning and Monitoring Unit (CPMU) of the Ministry of Labour and Social Protection for preparation of a technical report; and(e)Whether it is entitled to costs. 7.On the first issue the Claimant submits that the Respondent is under a mandatory statutory duty to negotiate a successor CBA upon the expiry of the previous agreement. Reliance is placed on section 57(1) of the Labour Relations Act, which requires a collective agreement to be renewed or replaced through negotiations before its expiry. The Claimant asserts that the previous CBA expired on 31st December 2022 and that, despite repeated requests by the Union, the Respondent has persistently refused to engage in negotiations, thereby violating section 57(1) of the Act. The Claimant relies on Kenya Union of Commercial Food and Allied Workers v U-Fresh Enterprises Limited [2025] KEELRC 406 (KLR), where the Court held that an employer’s refusal to negotiate the renewal of a CBA after expiry is unlawful and undermines the statutory framework governing collective bargaining. The Claimant further submits that the duty to engage in collective bargaining is constitutionally protected under Article 41(5) of the Constitution, which guarantees every trade union and employer the right to engage in collective bargaining. Accordingly, the Respondent’s refusal to negotiate is both a statutory and constitutional violation. 8.On the second issue the Claimant submits that the Respondent’s pending application before the National Labour Board for revocation of the Recognition Agreement does not suspend or extinguish its obligation to negotiate a successor CBA. Reliance is placed on section 54(5) of the Labour Relations Act, which allows an employer to apply for revocation of a recognition agreement but does not provide that the filing of such an application automatically suspends the agreement or the obligations arising from it. The Claimant asserts that the Recognition Agreement remains valid and binding until lawfully revoked by the National Labour Board. It further relies on the conciliator’s Certificate of Unresolved Trade Dispute, which expressly stated that the Respondent’s application for revocation did not bar negotiations for the 2023-2026 CBA. The Claimant also refers to Kisumu ELRC Cause No. E059 of 2023, where Radido J. (as he then was) granted the parties liberty to return to the negotiating table, and submits that the Respondent cannot rely on the pending revocation application to avoid negotiations, contending the doing so would permit an employer to frustrate collective bargaining indefinitely. 9.On the obligation to furnish audited reports, the Claimant submits that the Respondent is legally obligated to furnish audited financial statements for the years 2019 to 2022 pursuant to section 57(2) of the Labour Relations Act, which requires an employer to provide a recognised trade union with information necessary for effective collective bargaining. It asserts that access to audited financial statements is essential where the employer claims financial inability to meet union proposals, as meaningful negotiations cannot occur in the absence of relevant financial information. 10.On referral of the matter to the Central Planning and Monitoring Unit (CPMU), the Claimant submits that it should be referred because the dispute concerns monetary clauses requiring consideration of complex economic factors, including the Respondent’s financial capacity, prevailing industry conditions, and the broader economic environment. It asserts that the Unit is specifically mandated to provide independent economic analysis to facilitate collective bargaining and assist parties in resolving disputes involving economic issues. Reliance is placed on Kenya Tea Growers Association v Kenya Plantation & Agricultural Workers Union [2018] eKLR, where the Court of Appeal recognised the usefulness of CPMU reports in assisting the Court and parties to resolve economic disputes arising from collective bargaining. The therefore maintains that since direct negotiations and conciliation have already failed, a referral to the CPMU would provide an objective and evidence-based foundation for concluding the 2023-2026 CBA negotiations. 11.On costs the Claimant urges the court to grant it the same because the Respondent has failed to comply with its statutory and constitutional obligations, ignored requests to negotiate, failed to cooperate during conciliation, and maintained an untenable legal position that a pending revocation application excuses collective bargaining. Respondent’s Submissions 12.The Respondent on its part submits that the only issue for determination is whether this Court is clothed with jurisdiction. It maintains that the history of litigation between the parties, as set out in the Statement of Defence, the witness statement of Godfrey Businge, and the documents produced by both parties, establishes that this suit concerns the same subject matter that has already been litigated and remains pending before the National Labour Board. 13.It reiterates that it refused negotiation for the 2023-2026 CBA because the Claimant’s membership among the Respondent’s unionisable employees had fallen below the statutory threshold of a simple majority. In support of this contention, the Respondent relies on the letter dated 30th August 2023 written by its advocates challenging the Claimant’s entitlement to negotiate a further CBA. The Respondent further submits that the dispute was first referred to the Cabinet Secretary for Labour, resulting in the appointment of a conciliator, Ms. M. W. Rabong’o, who issued a Certificate of Unresolved Trade Dispute dated 27th April 2023. Following that process, the Claimant instituted Kisumu ELRC Cause No. E059 of 2023, Kenya Petroleum Oil Workers Union v Green Wells Energies Ltd, seeking substantially the same orders now sought in the present proceedings, namely an order compelling the Respondent to negotiate a CBA and furnish audited financial statements. Further supporting its position, the Respondent draws attention to the fact that in that earlier suit it filed a Statement of Defence and Counterclaim seeking declarations that the Recognition Agreement stood revoked or liable to revocation because the Claimant no longer represented a simple majority of unionisable employees, and that the Claimant had no right to continue negotiating a CBA unless a fresh recognition agreement was executed. It relies on the judgment of Radido J. (as he then was) delivered on 6th December 2023, in which the Court dismissed the Claimant’s claim, declined the Respondent’s counterclaim as premature because the Respondent had not first pursued revocation before the National Labour Board under section 54(5) of the Labour Relations Act, and granted the parties liberty to return to the negotiation table. The Respondent further notes that the Claimant’s application for review dated 16th January 2024 was dismissed on 17th April 2024, and no appeal was filed against either decision. 14.The Respondent submits that, in compliance with the Court’s direction, it promptly filed an application before the National Labour Board on 8th December 2023 seeking revocation of the Recognition Agreement. It relies on correspondence exchanged with the National Labour Board, pleadings filed before the Board, affidavits of service, and hearing notices showing that a tribunal was constituted, the parties filed their respective documents, and the matter was heard on 16th December 2024, with ruling reserved. According to the Respondent, the application for revocation remains pending because the National Labour Board has not yet delivered its decision despite follow-up correspondence dated 12th April 2025. The Respondent contends that this pending proceeding is central to the present dispute because, if the Board determines that the Claimant lacks the statutory threshold of membership, the Claimant would lose the legal capacity to enforce the Recognition Agreement or compel negotiations for a successor CBA. The Respondent also relies on correspondence from the County Labour Officer dated 24th February 2025 requiring the Respondent to provide payroll information, which it characterises as an irregular attempt to facilitate fresh recruitment of members by the Claimant while the revocation proceedings were pending. It refers to its responses dated 28th February 2025, in which it protested the exercise and asserted that it would prejudice the pending proceedings before the National Labour Board. The Respondent submits that the Claimant has continuously pursued negotiations and instituted multiple proceedings despite the pending revocation process, thereby engaging in forum shopping and duplicative litigation. It argues that the present suit seeks substantially the same reliefs that were sought in Kisumu ELRC Cause No. E059 of 2023, and that the dispute regarding recognition is already before the National Labour Board, rendering the present proceedings an abuse of court process and contrary to the doctrines of lis pendens and res judicata Reliance is placed on Satya Bhama Gandhi v Director of Public Prosecutions, Chief Magistrate, Kibera & others [2018] eKLR, where the Court held that multiplicity of proceedings involving substantially the same subject matter constitutes an abuse of court process and that courts have inherent jurisdiction to strike out such proceedings in order to protect the integrity of the judicial process. The Respondent therefore urges the Court to find that the Claimant has lost the legal capacity to compel CBA negotiations while the issue of recognition remains pending before the National Labour Board, and that the present suit is an abuse of the court process. It accordingly prays that the suit be struck out with costs. Disposition 15.The pendency of an appeal or motion for revocation before the National Labour Board acts as a bar to the negotiation of a CBA. In this case, the Respondent sought revocation of the recognition agreement. My brother Radido JA heard parties and delivered a decision in the suit the Claimant instituted vide Kisumu ELRC Cause No. E059 of 2023, Kenya Petroleum Oil Workers Union v Green Wells Energies Ltd. That suit sought substantially the same orders as in the present proceedings, namely an order compelling the Respondent to negotiate a CBA and furnish audited financial statements. In that earlier suit the Respondent filed a Statement of Defence and Counterclaim seeking declarations that the Recognition Agreement stood revoked or liable to revocation because the Claimant no longer represented a simple majority of unionisable employees, and that the Claimant had no right to continue negotiating a CBA unless a fresh recognition agreement was executed. As noted earlier, Radido J. (as he then was) in a decision delivered on 6th December 2023, dismissed the Claimant’s claim, declined the Respondent’s counterclaim as premature because the Respondent had not first pursued revocation before the National Labour Board under section 54(5) of the Labour Relations Act, and granted the parties liberty to return to the negotiation table. The Claimant’s application for review dated 16th January 2024 was dismissed on 17th April 2024. No appeal was filed against either decision. It is therefore inappropriate for the Claimant to pursue this matter before this Court as there is a valid revocation process pending before the National Labour Board. The suit herein is dismissed with costs to the Respondent as there was no basis to present a claim granted the proceedings before the National Labour Board.It is so ordered. DATED THIS 30TH DAY OF JULY 2026 AND DELIVERED ON 31ST JULY 2026NZIOKI wa MAKAU, MCIArb.JUDGE