https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2082

Kenya Shipping, Clearing, Freight Logistics & Warehouse Workers Union v Vegpro Kenya Limited (Cause E1210 of 2021) [2026] KEELRC 2082 (KLR) (17 July 2026) (Ruling) Neutral citation: [2026] KEELRC 2082 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E1210 of 2021 AK Nzei, J July 17, 2026 Between Kenya Shipping, Clearing, Freight Logistics & Warehouse Workers Union Claimant and Vegpro Kenya Limited Respondent Ruling 1.The Claimant Trade Union sued the Respondent vide a Memorandum of Claim dated 26th November, 2025 seeking the following Orders:-a.That the Respondent starts deducting union dues forthwith.b.That the Respondent pays union dues for the last twelve (12) months from its pockets for failure to comply with the law immediately after it was served.c.That the entire employees (sic) be allowed to exercise their constitutional right by choosing a trade union of their choice through secret ballot by the Respondent by placing Notice on notice board (sic) one month prior to the date of balloting.d.That the Respondent do pay a penalty of Kenya Shillings forty thousand for violation of the law, Section 48(3) of the Labour Relations Act 2007.e.An order compelling the Respondent to pay full costs of the suit. 2.The suit was filed contemporaneously with an urgent Notice of Motion dated 26th November, 2025 seeking the following Orders:-a.Spent.b.That pending hearing and final determination of the suit, the Court be pleased to issue an interim injunction order restraining the Respondent, whether by itself, its agents, servants, employees or otherwise howsoever from harassing, victimizing, intimidating, terminating or in any other manner interfering with the employment of unionized employees who are the Claimant/Applicant’s union members or those intending to join the Claimant/Applicant’s Union.c.That the Court be pleased to issue an order compelling the Respondent to deduct and remit union dues as per check-off forms forwarded, dated 26th August, 2024 and 14th May, 2025, and that the Respondent do maintain the status quo in respect of unionized employees as per their terms and conditions of employment and union membership.d.That pending hearing and determination of the suit herein, the Court be pleased to issue a show cause order why the Respondent cannot face [a] general penalty of Kshs. 40,000/=.e.That the Court be pleased to issue an order allowing the entire labour force [unionisable employees] to exercise their constitutional right through secret ballot to decide [on] joining a trade union of their choice (registered sectoral trade union).f.That costs of the application be provided for. 3.The application, shown to be grounded on the supporting affidavit of James O. Tongi, sworn on 26th November, 2025, was placed before me under a Certificate of Urgency. Finding no urgency in the application, I directed that both the application and the suit documents filed herein be served on the Respondent; which was subsequently done. 4.The Respondent responded to the Claimant’s aforesaid application vide a replying affidavit of Arthur Mwangi sworn on 13th February, 2026. 5.The Respondent also filed a Notice of Preliminary Objection dated 13th February, 2026, calling for the application to be struck off on the following grounds:-a.That the Notice of Motion application dated 26th November, 2026 is mala-fide, is misconceived, incompetent, vexatious, frivolous and an abuse of this Court’s process, bad in law and is brought in bad faith as the Applicant has failed, neglected and/or refused to exhaust the statutory conciliation process before the Cabinet Secretary for Labour as required by law.b.That this Court lacks jurisdiction to hear and determine the application and/or the entire suit for failure by the Applicant to comply with the mandatory dispute resolution mechanism under Section 74 of the Labour Relations Act.c.That no Certificate of unresolved dispute, conciliation report, or referral has been annexed to the pleadings in compliance with Section 74 of the Labour Relations Act.d.That the application is pre-mature, incompetent and fatally defective for offending the doctrine of exhaustion.e.That the application should be struck-off with costs to the Respondent. 6.The Claimant/Applicant filed an affidavit in response to the Preliminary Objection, sworn by James O. Tongi on 25th March, 2026. It is deponed in the said affidavit, inter-alia, that the Cabinet Secretary for Labour issued an Order Number 153 of 2021, which is valid and in force, and that the Cabinet Secretary for Labour cannot initiate any conciliation or investigations on his own order, and therefore question his own decision. That the employees have authorised the Respondent to deduct and remit union dues to the Claimant. 7.The Court issued directions on 18th February, 2026 to the effect that the Respondent’s Preliminary Objection be heard first, and be canvassed by written submissions. Written submissions have since been filed by both parties. 8.The Claimant has not disputed the Respondent’s assertion that the dispute herein was not referred for conciliation pursuant to Section 74 of the Labour Relations Act prior to institution of the suit herein. I have also noted from the material placed before this Court by the Respondent, to which no denial has been made by the Claimant; that there exists a Recognition Agreement and a duly registered Collective Bargaining Agreement (CBA) between the Respondent and another Trade Union – Kenya Union of Commercial, Food and Allied Workers (KUCFAW). The said Agreements are not shown to have been revoked pursuant to provisions of the Labour Relations Act. 9.On its part, the Claimant pleaded an order by the Cabinet Secretary for Labour, No. 153 of 2021, a copy whereof was filed with the Claimant’s affidavit referred to in paragraph 6 of this Ruling. Clause 1 of the said Order states as follows:-“ 1.This Order may be cited as the Kenya Shipping, Clearing, Freight, logistics and Warehouses Workers Union (Collection of Union Dues Order) 2021.” 10.Clause 2 of the said Order states, in part:-“ 2.An employer who employs more than five members of the Kenya Shipping, Clearing, Freight, Logistics and Warehouse Workers Union shall:-a.deduct, on a monthly basis, a sum equal to two percent of the consolidated wages of an employee who is a member of the Kenya Shipping, Clearing, Freight, Logistics and Warehouse Workers Union, in respect of the trade union dues of the member.b.remit within ten days of the date of deduction, the total sum deducted under paragraph (a) by crossed cheque or electronic funds transfer to Kenya Shipping, Clearing, Freight, Logistics and Warehouse Workers Union’s Account No. . . .” 11.The aforesaid Legal Notice, shown to have been issued by the Cabinet Secretary for Labour and Social Protection on 29th June, 2021, is shown to have been issued pursuant to Section 48 of the Labour Relations Act; and is therefore to be construed within the purview of the statute. In my view, Section 48 of the Labour Relations Act is to be read together with Section 54 of the said Act, which provides for recognition of a Trade Union by an employer. In my view, there must be Order in the Labour Industry. The law does not provide for recognition by an employer of more than one trade union in the same sector at the same time. A trade union, in my view, must be recognised by an employer in accordance with the statute before union dues can be deducted by the employer in favour of the trade union from employees who are members of the trade union. 12.I rendered myself as follows in the case of Kenya Union of Nurses & Midwives v Kenya Union of Civil Servants and Registrar of Trade Unions [2026] KEELRC 340 (KLR):-“26.. . . Provisions of the Labour Relations Act do not envision a situation whereby more than one trade unions are recruiting members from employees of an employer at the same time. Recruitment of members who are employed can only be done within the legal parameters laid down in the Labour Relations Act; which provides for recognition of only one trade union at any one given time by an employer. That is why the Act provides for a dispute resolution mechanism where a dispute arises regarding the right of a trade union to be recognised by an employer. Section 48(6) & (7) of the LRA on the other hand provides the procedure to be followed by a member/employee wishing to resign from a trade union that has been recognised by an employer.27.Provisions of the Labour Relations Act ensure an orderly and regulated enjoyment of the Article 41 rights, as stated elsewhere in this Ruling.” 13.The Respondent has pleaded, and demonstrated that it has a Recognition Agreement and a Collective Bargaining Agreement with another trade union, and that it is deducting and remitting union dues to the said other trade union. 14.In view of all the foregoing, the issue of whether the Respondent is obligated to deduct and to remit union dues to the Claimant is one that must be determined before the Respondent can be compelled to effect deduction and remittance of union dues. I agree with the Respondent that the application dated 26th November, 2025 is premature, and therefore incompetent. The same must fall by the way side. 15.The Respondent submitted that Sections 62 and 67 of the Labour Relations Act contemplate that trade disputes, including those involving union dues and check-off arrangements, must first be reported to the Cabinet Secretary for Labour, and subjected to conciliation process before parties herein can approach this Court – upon issuance by the Conciliator of a certificate of an unresolved dispute. I do agree with this submission. 16.The Claimant has not demonstrated that the dispute was reported to the Cabinet Secretary for Labour, or that a conciliation process was undertaken and concluded in accordance with provisions of the Labour Relations Act. 17.The Court of Appeal stated as follows in the case of Muthanji & Another v Henry & 1756 Others (Civil Appeal No. 10 of 2015) [2015] KECA 304 (KLR):-“38.. . . It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of Judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside courts. This accords with Article 159 of the Constitution which commands courts to encourage alternative means of dispute resolution.” 18.It is my finding that the Claimant’s suit herein was pre-maturely instituted. I will, however, not strike the main suit down. I will, in the interest of justice, stay the same and allow parties to go for conciliation pursuant to provisions of the Labour Relations Act. 19.In sum, and having considered written submissions filed on behalf of both parties, the Respondent’s Preliminary Objection dated 13th February, 2026 is hereby upheld in the following terms:-a.The Claimant’s Notice of Motion dated 26th November, 2025 is hereby struck off with no order as to costs.b.The suit herein is hereby stayed for a period of six (6) months from the date of this Ruling to enable the Claimant to exhaust the dispute resolution mechanism provided for in the Labour Relations Act.c.The suit herein shall stand dismissed, with no Order as to costs, if (b) above is not complied with.d.The matter shall be mentioned in Court on 21/1/2027 for appropriate directions and/or Orders. 20.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF JULY 2026AGNES KITIKU NZEIJUDGEORDERThis Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees.AGNES KITIKU NZEIJUDGEAppearance:Mr. Mutongoi for the ClaimantMiss Oduor for the Respondent