https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2203

Kenya Shipping, Clearing, Freight Logistics and Warehouses Workers Union v Kenya Aviation Workers Union & another (Petition E261 of 2025) [2026] KEELRC 2203 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2203 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Petition E261 of 2025 M Mbarũ, J July 30, 2026 Between Kenya Shipping, Clearing, Freight Logistics and Warehouses Workers Union Petitioner and Kenya Aviation Workers Union 1st Respondent The Registrar of Trade Unions 2nd Respondent Judgment 1.The petitioner is a registered trade union under the provisions of the Labour Relations Act (LRA) representing employees of shipping agencies, clearing and forwarding, freight and sea logistics, warehousing, removals and ancillary operations for goods detained for import and export. The 1st respondent is a registered trade union with a different sectoral mandate, representing employees in the aviation industry and its cognate trades. The 2nd respondent is the statutory custodian, regulator, and guardian of the integrity of trade unions. 2.The petition is that the petitioner was registered to represent uninsurable employees in the shipping, clearing, forwarding, logistics, and warehousing sectors. The 1st respondent is registered to represent unionisable employees in the aviation sector. 3.The core commercial activities of Poached Enterprises are exclusively in the sphere of shipping, freight logistics, customs clearance, and warehousing, as mandated by the petitioner. There is nothing about aviation within the sector thereof. 4.In defiance of the sectoral mandates, the 1st respondent has procured a Recognition Agreement and entered into a collective bargaining agreement (CBA) for employees under the territorial and logistics-focused entities. This overreach is a fundamental breach of the sectoral bargain protected within the LRA ecosystem. 5.The 2nd respondent issued a circular dated 25 September 2025 directing all trade unions to operate within their sectoral mandates and in accordance with their union constitutions. The 1st respondent has continued to engage outside its sector in disregard of the 2nd respondent's circular. Efforts to engage the 1st respondent have been fruitless. 6.The conduct of the 1st respondent violates Article 41 of the Constitution on fair labour practices. There is a violation of Article 47, the right to fair administrative action, and Article 27, equality before the law and non-discrimination. 7.Section 33 of the LRA underpins sectoral integrity for trade unions. Hence, the 1st respondent's entry and recruitment of unionisable employees from outside its sector and into the petitioner’s sector are unlawful and ultra vires.The petitioner is seeking orders:a)A declaration be issued that the 1st respondent's recruitment, representation, and collection of union dues from employees in the shipping, clearing, forwarding, freight logistics, and warehousing sector is unlawful, unconstitutional, ultra vires and constitutes a flagrant abuse of its registration.b)A declaration that the 2nd respondent is in breach of its statutory duty by failing to deter and penalise the 1st respondent's sectoral encroachment in violation of Article 47 of the Constitution.c)A declaration that the Recognition Agreement, CBA, memorandum of understanding or other pact between the 1st respondent and Poached Enterprises (Africa Global Logistics (K) Ltd), its subsidiaries, Freight Wings Ltd, are null and void.d)A declaration that the financial exactions of union dues and agency fees collected by the 1st respondent from employees within the petitioner’s sector constitute unlawful levies and unjust encroachment in violation of the employees’ right to fair labour practices.e)An order of certiorari to bring to the court and quash every Recognition Agreement and CBA between the 1st respondent and any entity operating within the petitioner’s defined sectoral jurisdiction.f)An order of mandamus to issue compelling the 2nd respondent:i.Issue a bidding directive ordering the 1st respondent to immediately cease and desist from all operations within the petitioner’s sector.ii.To instruct all relevant employers to terminate all check-off and agency fee deductions in favour of the 1st respondent from affected employees forthwith.iii.To institute a transparent audit and review mechanism to prevent future sectoral violations. 8.The petitioner is further seeking an order that the 1st respondent be restrained from further recruitment in the sector in which it operates, that an audit be conducted of the union and agency dues collected, and that, for the constitutional breaches, damages be assessed and paid. 9.In reply, the 1st respondent filed the Replying Affidavit of Moss Ndiema, the Secretary General, who avers that the matters addressed in the petition and application are res judicata. These matters have previously been directly at issue between the petitioner and the 1st respondent in claims before the court.a)The petitioner joined a claim by the 1st respondent in Nairobi ELRC E253 of 2022 as an interested party and raised similar claims as herein. Judgment was delivered on 10 February 2023, and the petitioner's claims were dismissed. The decree and judgment have not been set aside, and there is no appeal.b)In an application dated 19 December 2023, the petitioner sought an order of review of the judgment in Nairobi ELRC E253 of 2022 and challenged that the 1st respondent is not a sectoral union in representing Bollore Africa Logistics now Africa Global Logistics (K) Limited and affiliate companies. In a ruling on 30 September 2024, the court dismissed the application.c)There is a pending appeal to the Court of Appeal in Nairobi, Civil Appeal No. E521 of 2025 by the petitioner against the ruling and orders issued on 30 September 2024. The 3rd ground of appeal is a challenge to the finding on which union should represent the employees.d)The petitioner has previously filed a similar claim against alleged members who joined other unions in Mombasa, ELRC E045 of 2022, while there was a pending case in Nairobi over a similar matter. The Mombasa cause was dismissed for being res judicata on 20 April 2023.e)The petitioner has previously filed a similar matter in Machakos ELRCC E001 of 2023.f)The 1st respondent discovered Machakos ELRCC E001 of 2023 after being excluded in an attempt to steal a match and mislead the court. The 1st respondent hence applied to be enjoined in the suit and to be struck out for being res judicata. The court struck out the claim as res judicata on 24 July 2023, in view of Nairobi ELRC E229 of 2023. There is no appeal or review therefrom. 10.Ndiema avers that the petition herein is res judicata and that the court lacks jurisdiction. A court of similar jurisdiction has fully addressed the matters addressed by the petitioner. Despite filing a review and an appeal, the petitioner has further filed the instant suit in abuse of court process. Well aware of Civil Appeal E521 of 2025, the petitioner has moved the court herein with misleading facts and non-disclosure of the previous suits. 11.There is no genuine cause addressed by the petitioner save to abuse the court process. Filing the petition instead of a cause is not necessary, as the principles for a constitutional petition have not been met, as held in Anarita Karimi Njeru v Republic [1979] eKLR and Centre for Rights Education and Awareness (CREAW) & 7 others v Attorney General [2011] eKLR. 12.Ndiema avers that the allegations that the petitioner is the suitable sectoral trade union to represent unionisable employees in the issue herein are baseless and contrary to employee freedom of association and the right to unionise in a trade union of choice. There is no justification for the orders sought to gag or curtail the rights of the subject employees. The petition is filed contrary to public policy, statute and the constitution. There is no justifiable cause to compel the employees to join a trade union other than the one they have chosen. The conservatory orders sought should not issue, and the petition should be dismissed with costs. 13.The 2nd respondent filed the Replying Affidavit of Anne Kanake, who averred that, as the acting Registrar of Trade Unions, the mandate of the office is defined under the LRA. Such a mandate does not include the demarcation of OS sectors, the allocation of employees, or the policing of inter-union rivalry, as alleged by the petitioner. 14.Ms Kanake avers that under the LRA, the office is not required to determine or enforce exclusive membership of employees to a particular trade union. The allegations that the 1st respondent has encroached on the petitioner’s sector and obtained a Recognition Agreement and a CBA are misplaced, since sections 48, 54, and 57 of the LRA are primarily concerned with relations between employees, the employer, and trade unions. The 2nd respondent has no role therefrom. 15.The freedom of association and unionisation is constitutional. The 2nd respondent cannot lawfully direct or compel employees to join a trade union that they have not chosen. 16.Ms Kanake avers that the check-off deductions and agency fees are governed under section 48 and 49 of the LRA. Upon receipt of executed check-off forms and compliance with the law, the 2nd respondent has an administrative role but no power to direct employers to terminate deductions unilaterally. The orders sought by the petitioner cannot be issued as such would conflict with the law, particularly the LRA. The challenged rivalry between the petitioner and the 1st respondent can properly be resolved through conciliation under section 62 of the LRA, rather than through administrative intervention by the 2nd respondent. 17.In the petition, the petitioner submitted that the scope and effect of its constitution are to represent unionisable employees in the clearing, forwarding, freight, and sea logistics, and warehousing for imports and exports. The 1st respondent is not the union registered to address this sector. The orders sought in the petition should be allowed, and the 2nd respondent compelled to undertake an audit for the remittance of union dues and agency fees remitted to the 1st respondent to be paid to the petitioner. 18.Under section 14 of the LRA, the union constitution allows it to operate under its sector. Article 41 of the constitution allows employees to unionise and to determine their own activities. The 1st respondent's encroachment of the petitioner’s sector is unlawful and should be redressed with the grant of the orders sought. 19.The petition is not res judicata as alleged. ELRC Cause E253 of 2022 related to the termination of the Recognition Agreement between the 1st respondent and Bollore Transport & Logistics (K) Limited. The petitioner was only an interested party. 20.ELRC Cause E229 of 2023, the issue was recognition of agreements between the petitioner and Bollore Transport & Logistics Limited, and the 1st respondent was an interested party. 21.The present petition is thus distinct from the previous suits. The suit is necessary as it relates to a different agency that has recognised the 1st respondent unlawfully; hence, there is no multiplicity of suits as alleged. Civil Appeal E521 of 2025 is pending and relates to proceedings in Nairobi ELRC E253 of 2022. 22.In response to the employees' right to associate and unionise, the 1st respondent has failed to demonstrate that the employees in the petitioner’s sector are included in its constitution. The application of Article 25 of the Constitution in this case is misplaced. Section 14 of the LRA allows each union to operate in its sector; hence, the limitation on employee recruitment is lawful. The orders sought should be issued. 23.The submissions are analysed in the findings. Determination 24.The issues which emerge for determination are:(i)Whether this is a proper constitutional petition.(ii)Whether the res judicata rule applies.(iii)Whether the orders sought by the petitioner should be issued. 25.Starting with the issue of res judicata, the petitioner does not deny that there are previous suits in Nairobi ELRC E253 of 2022, in which the dispute concerned the recognition of the 1st respondent by Bollore Transport & Logistics (K) Limited. There is a determination of the matter. 26.The petitioner also admitted that there is Nairobi ELRC E229 of 2023, and that the issue in dispute was the recognition of the 1st respondent by Bollore Transport & Logistics (K) Limited, with the 1st respondent joined as an interested party. There is a determination in the matter. 27.Also, the petitioner has admitted the existence of ELRC E045 of 2022, and the issue in dispute is the stoppage of agency fees by individual employees against Bollore Transport & Logistics Limited, with the 1st respondent as the interested party. 28.The petitioner also admitted the existence of Civil Appeal No. E521 of 2025 from the judgments in ELRC E253 of 2022 and ELRC E229of 2023. The court's findings regarding the recognition of the 1st respondent are in issue before the Court of Appeal. 29.The petitioner has not given reference to Mombasa ELRC No. E045 of 2023 and Machakos ELRC E001 of 2023. The matters are interconnected herein and relate to the recognition of the 1st respondent vis-a-vis the deduction and remittance of trade union dues and agency fees. Whether the causes are filed by individual employees or by the petitioner, the issue in dispute is similar. 30.The petitioner has not assigned any reason for seeking to move the court by way of a constitutional petition, other than to urge that the 1st respondent has been recognised by an employer, thereby encroaching on its sectoral area of application and surrounding members. However, the issue remains the same. 31.A suit is res judicata where there is a violation of the provisions of section 7 of the Civil Procedure Act. In John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR), the court applied the doctrine of res judicata and held:For res judicata to be invoked in a civil matter, the following elements had to be demonstrated:a.there was a former judgment or order which was final;b.the judgment or order was on the merits;c.the judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; andd.There had to be between the first and the second action identical parties, subject matter and cause of action. 32.The doctrine of res judicata was based on the principle of finality, which was a matter of public policy. The principle of finality was one of the pillars upon which the judicial system was founded, and the doctrine of res judicata prevented a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties. It ensured that litigation ended and that the verdict was conclusively translated into fruit for one party and liability for another. 33.For the doctrine of res judicata to apply, Section 7 of the Civil Procedure Act requires:No court shall, try, any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title in a court competent to try such subsequent suit or issue in which such issue has been subsequently raised, and has been heard and finally decided by such court. 34.Therefore, where a suit has been decided before the same court on the same question whether or not it was instituted before it, it cannot be re-litigated. Fundamentally, once the issue in dispute has been addressed with finality, it shall not be relitigated. 35.It is not lost to the court that there exists Civil Appeal E521 of 2025. It relates to the recognition of the 1st respondent by the employers in a sector to which the petitioner belongs under its constitution. Hence, the matters herein, addressed as above, relate to the same questions of law that have been addressed by this court comprehensively with a ruling and judgment. To raise this petition is an abuse of court process. 36.The petition is res judicata. It denies the court the requisite jurisdiction to hear and determine the petition. 37.As to whether this is a proper petition, the issues addressed in the petition are well governed by Rule 10 of the Employment and Labour Relations Court (Procedure) Rules. There is no particular novelty in naming the dispute as a constitutional petition whereas a Memorandum of Claim would have sufficed, as held in Sumayya Athmani Hassan v Paul Masinde Simidi [2019] eKLR. The court held that the Employment Act and the Labour Relations Act now address Article 41 of the Constitution. Where a petition is not premised on the question of the constitutionality of any statute, such matter ought to be addressed under the applicable statute. To invoke constitutional provisions is not sufficient, and the court hearing the petition should have struck it out.This is not a proper petition. 38.On the substantive issues raised in the petition, the power behind the Bill of Rights under the Constitution cannot be overemphasised. With it, everyone has their rights secured. 39.Under Articles 36 and 41 of the Constitution, everyone has the right to association and the right to fair labour relations, including the right to join a trade union of choice. Such choices in association and unionisation cannot be restricted unless there are cogent reasons premised on the Constitution or the law. 40.The court in Kenya National Private Security Workers Union v Fargo Courier Limited [2023] KEELRC 265 (KLR) held that the employee's freedom to associate and unionise cannot be regulated unless there is an overriding right secured under the Constitution. The court held:… no [employer has the] right to dictate the membership of the union which its employees may join. It is their cardinal right to determine their union of choice. It matters not whether it is the relevant trade union in that sector. What matters is the employee’s freedom and right to associate and unionize as guaranteed by the Constitution. 41.In Amalgamated Union of Kenya Metal Workers vs Dock Workers Union & another [2019] eKLR, in addressing a challenge to sectoral representation by trade unions, the court held:.It is therefore not a substantive point of law, for the 2nd Respondent, to posit that the 1st Respondent is not the relevant Trade Union to represent Employees in the motor trade group. Recent decisions from the Courts have tended to overlook industrial trade unionism, in favour of freedom of association. Realities on the ground have shown that the principle of ‘one industry, one trade union’ is no longer workable. 42.Therefore, employees' right to associate should not be restricted unless there is a fundamental breach of the constitution. In Kenya Concrete, Structural, Ceramic Tiles, Wood Plys and Interior Design Workers Union v Kenya Builders and Concrete Co Ltd [2025] KEELRC 2557 (KLR) and Bakery Confectionary Food Manufacturing and Allied Workers Union (Kenya) v Monking Bakers Limited [2022] KEELRC 1508 (KLR) the courts emphasized that the sanctity of the law and constitution about giving effect to the right to associate and unionize under Article 36 and 41 is foundational in the shop floor. Unless a limitation is allowed under Article 25 of the Constitution, no right secured under the Bill of Rights permits derogation, including the right to associate and unionise in terms of the LRA. See County Government of Machakos v Kenya National Union of Medical Laboratory Officers (KNUMLO) [2026] KEELRC 719 (KLR). 43.In this case, the petitioner does not make a case that it has recruited or sought to recruit members employed by Poached Enterprises, and it failed to do so because the 1st respondent has engaged the union-eligible employees, attained the necessary threshold for recognition, and has since negotiated a CBA. The petitioner cannot fault unionisable employees for exercising their rights to associate and unionise under the 1st respondent. 44.The essence of the orders sought, including the directives outlined for issuance against the 2nd respondent, has no foundation vis-à-vis the employee rights under articles 36 and 41 of the Constitution. The petitioner cannot justify its inaction or failure to secure members from its sector, and ask the court to issue orders stopping employees from associating and unionising under the 1st respondent. 45.Such orders cannot be issued, as doing so would limit fundamental rights and freedoms secured under the Constitution under Articles 36 and 41. Any limitation can only be to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. These factors are missing in the petition to justify the orders sought. 46.This not being a proper petition, the matter is filed in contravention of the doctrine of res judicata; the petition is without merit and is hereby dismissed. The petitioner shall meet the costs due to the respondents. DELIVERED IN OPEN COURT THIS 30TH DAY OF JULY 2026M. MBARŨJUDGEIn the presence of:Court Assistant: Kemboi…………………… and ………………………