https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1420

 **REPUBLIC OF KENYA** **IN THE EMPLOYMENT *&* LABOUR RELATIONS** **COURT OF KENYA AT KISUMU** **CAUSE NO. E085 OF 2025** KENYA TERTIARY AND SCHOOL WORKERS UNION...........................……………......**CLAIMANT** **VERSUS** MASENO UNIVERSITY.........................................................**RESPONDENT** **JUDGMENT** 1. The Claimant filed this suit via a Statement of Claim dated 15th September 2025 seeking the following reliefs: * + 1. A declaration that the Respondent violated section 56 of the Labour Relations Act by failing to deduct and remit union dues. 2. An order compelling the Respondent to commence deduction of trade union dues pursuant to section 48 of the Labour Relations Act. 3. An order directing the Respondent to immediately begin deducting union dues from all members who submitted valid check-off authorization forms and to remit the same to the Claimant within ten days of deduction. 4. An order compelling the Respondent to pay all outstanding and unremitted union dues from January 2021 to date together with interest at commercial rates. 5. General damages for the violations complained of. 6. Any other relief the court may deem just and appropriate. 7. Costs of the suit. 2. The Claimant’s case is that it is the relevant trade union mandated to represent non-teaching staff in institutions of higher learning and that, by January 2021, it had successfully recruited 227 out of the Respondent’s 367 unionizable employees, representing 61.8% of the workforce. It avers that on 19th January 2021 it forwarded check-off authorization forms for the 227 employees to facilitate deduction and remission of union dues, but the Respondent failed and/or refused to comply. According to the Claimant, despite several reminders and attempts at conciliation, the Respondent has persisted in refusing to deduct and remit the union dues. 3. In response, the Respondent filed a Statement of Response dated 15th October 2025 in which it generally denied the averments contained in the Memorandum of Claim and put the Claimant to strict proof thereof. Specifically, the Respondent denied that the Claimant was the appropriate union to represent its unionizable non-teaching staff, that the Claimant had recruited its employees, or that it had received the alleged check-off forms. The Respondent further contended that most of the alleged recruits were either non-existent or unaware of their purported membership in the Claimant Union. 4. Without prejudice to the foregoing, the Respondent averred that it had a total workforce of 1,092 employees comprising 563 teaching staff and 529 non-teaching staff. It maintained that the sector in which it operated already had 3 trade unions namely; Universities' Academic Staff Union (UASU) representing all teaching staff (Grade 10 -15), Kenya Universities Staff Union (KUSU) representing non-teaching staff (Grade 5 – 15) and Kenya Union of Domestic, Hotels, Educational Institution, Hospitals and Allied (KUDHEIHA) representing support staff (Grade 1-4). Additionally, the Respondent asserted that upon verification of the list of 227 alleged members it established that 43 were not its employees, 5 had discrepancies in their personnel numbers, 1 was a casual worker, 60 had formally disputed or renounced membership of the Claimant, while the remaining 118 are members of KUDHEIHA. 5. The Respondent further contended that none of the said 118 employees had notified it of resignation from KUDHEIHA. It also averred that the Claimant did not have a Recognition Agreement with the Inter-Public Universities Council Consultative Forum, the umbrella body mandated to execute recognition agreements with unions on behalf of universities. Consequently, the Respondent urged the court to dismiss the claim with costs. 6. At the hearing, each party called one witness. On behalf of the Claimant, Mr. Paul Kinyangi, its Secretary General, testified and adopted his witness statement dated 15th September 2025 as his evidence in chief. He also produced the documents contained in the lists of documents dated 15th September 2025 and 10th November 2025. During cross-examination, he acknowledged that the Claimant had not attached receipts for registration fees. 7. On the Respondent’s side, Ms. Modesta Nanjala Sindani, the Assistant Registrar in the Human Resource Directorate, testified and adopted her witness statement dated 15th October 2025 as her evidence in chief. She stated that the Respondent had not received any resignation letters from employees resigning from other unions, nor had it received any gazette notice authorizing deduction of union dues in favour of the Claimant. In cross-examination, she conceded that there was no documented basis for the staff figures provided by the Respondent. 8. Upon close of the hearing, both parties filed written submissions. Claimant’s Submissions 1. The Claimant submitted that its claim was founded on section 56 of the Labour Relations Act, 2007, which obligates an employer, upon receipt of employees’ written authorizations, to deduct and remit union dues. It asserted that all the 227 employees signed check-off forms which were delivered to the Respondent on 19th January 2021, thereby triggering the Respondent’s statutory obligation. According to the Claimant, deduction of union dues is independent of a Recognition Agreement, as sections 54 and 55 of the Act concern recognition and collective bargaining, while section 56 exclusively governs check-off deductions. 2. The Claimant further relied on Legal Notice No. 7 of 2022, submitting that it operationalizes the check-off mechanism and requires employers to deduct and remit union dues within ten days without linking the obligation to the existence of a Recognition Agreement. The Claimant maintained that the Respondent had acknowledged receipt of the check-off forms and initially declined to act solely on the basis that no Recognition Agreement existed, thereby contradicting its later allegations of fraud, non-existent employees, and discrepancies in PF numbers. 3. On the Respondent’s reliance on existing CBAs with UASU, KUSU and KUDHEIHA, the Claimant submitted that such agreements did not extinguish employees’ constitutional right under Article 41(2)(c) of the Constitution to join a union of their choice. It maintained that the suit was not intended to compel recognition or conclusion of a CBA, but merely to enforce the statutory duty to deduct and remit union dues following employees’ signed authorizations. 4. The Claimant further argued that the Respondent’s refusal to implement the check-off forms infringed on employees’ constitutional rights of freedom of association by effectively forcing them to continue supporting unions they no longer wished to belong to. It also urged the Court to treat the Respondent’s subsequent verification exercise with caution, contending that allegations of fraud, denunciations and non-existent employees only emerged after the suit had been filed. The Claimant submitted that the alleged denunciations were legally ineffective since section 57 of the Labour Relations Act requires one month’s written notice to both the employer and the trade union, and no such notices had been served upon the Claimant. The Claimant also asserted that the Respondent failed to particularize the alleged 43 non-employees and that the assertion that some employees belonged to KUDHEIHA merely confirmed the existence of the employees and their freedom to resign and join the Claimant. 5. On the issue of ministerial authorization under section 48 of the Labour Relations Act, the Claimant submitted that the Respondent improperly introduced the issue during the hearing without pleading it. In any event, the Claimant maintained that the relevant Gazette Notice authorizing deductions had been produced. Reliance was placed on the case of **Kenya Electrical Traders Allied Workers Union *v* Kenya Electricity Transmission Company Ltd [2021] KEELRC 2146 (KLR)** in support of that position. 6. The Claimant further submitted that this Court had jurisdiction under Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act. It also relied on the Certificate of Unresolved Dispute issued by the Ministry of Labour to demonstrate that the Respondent failed to participate in conciliation despite invitations from the conciliator. In conclusion the Claimant urged the court to allow the suit as prayed. Respondent’s Submissions 1. The Respondent submitted that the Claimant had failed to meet the threshold for recognition under section 54 of the Labour Relations Act because it had no Recognition Agreement with the Respondent, which already recognised KUSU, KUDHEIHA and UASU. Relying on the decision in **Abyssinia Iron *&* Steel Limited *v* Kenya Engineering Workers Union [2016] eKLR**, **Kenya Plantation and Agricultural Workers Union *v* Bendor Estate Limited [2019] eKLR** and **Banking Insurance *&* Finance Union (Kenya) *v* Waumini Sacco Society Limited [2018] eKLR**, the Respondent asserted that recognition depends on proof of a simple majority of unionizable employees. 2. As regards membership, the Respondent disputed the Claimant’s alleged membership of 227 employees, asserting that 43 were not employees, five had mismatched staff numbers, one was a casual employee, sixty had disowned membership through written letters, and the remaining employees belonged to KUDHEIHA. It further submitted that the alleged resignation letters from KUDHEIHA members were never acknowledged or served upon the employer, and that the Claimant had therefore failed to comply with sections 48 and 54 of the Labour Relations Act. The Respondent also asserted that the Claimant had not complied with the statutory procedure for deduction of union dues because no gazette notice issued by the Minister under section 48(2) and (3) of the Labour Relations Act had been produced. It maintained that, in the absence of such notice and proper service of Form S in the third schedule, the Respondent could not lawfully commence deductions or remit union dues. 3. The Respondent further submitted that PW1’s testimony weakened the Claimant’s case because he failed to state the exact number of employees recruited in 2023, could not accurately quantify the alleged unremitted dues, and admitted that the Claimant had no existing collective bargaining agreement with any public university. Relying on the decisions in the cases of **Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals *&* Allied Workers (Kudheiha) *v* British Army Training Unit Kenya [2015] eKLR**, **Kenya National Union of Nurses *v* County Public Service Board Homabay [2018] eKLR** and **Kenya Union of Commercial, Food and Allied Workers *v* Eastleigh Mattresses Limited (Eastmatt) [2017] eKLR**, the Respondent maintained that the Claimant had failed to prove a current simple majority. It further relied on **Wambui Ndiritu *v* Joseph Kiprono Ropkoi *&* another [2005] 1 EA 334**,to argue that the burden of proof rested upon the Claimant under section 107 of the Evidence Act. 4. On the reliefs sought, the Respondent asserted that section 56 of the Labour Relations Act concerns access to an employer’s premises and not deduction of union dues, adding that the Claimant had previously been granted access to recruit employees in 2021 and 2023. It further relied on **Kenya Tertiary *&* Schools Workers Union (KETASWU) *v* University Council, University of Nairobi [2018] KEELRC 2553 (KLR)**, to submit that deductions could only cease or commence upon proper service of resignation notices and statutory notices upon the employer. Consequently, the Respondent urged the Court to dismiss the claim with costs for failure to prove compliance with sections 48 and 54 of the Labour Relations Act. Disposition 1. The Claimant is required under the law to undertake recruitment in the enterprise where it has an interest. Once the union recruits a sufficiently large number of employees, the employer is obliged to recognise the trade union if the trade union represents the simple majority of the unionisable members of the enterprise. The issue of simple majority is a question of numbers. The Claimant had asserted in the claim that it had successfully recruited 227 out of the Respondent’s 367 unionizable employees by January 2021. This suit was filed in 2025, almost 6 years later. Why? It beats logic to have members in large numbers then wait for over 5 years to seek the enforcement of the rights that accrued in January 2021. 2. The Respondent points out that a number of recruits left the Claimant Union since the enrolment in 2021 and the issue was compounded by the fact the Claimant did not have a Recognition Agreement with the Inter-Public Universities Council Consultative Forum, which is the umbrella body mandated to execute recognition agreements with unions on behalf of universities. In the dispute before me, it was not clear even in the testimony of the Claimant’s sole witness how many members initially recruited were still members of the Union. In any event, it is clear the list provided had errors. There were inconsistencies in the details captured on the forms and as such, the Court is not confident the Union recruited a simple majority as touted by the Claimant. The foregoing is ample to indicate that the suit is for dismissal. The suit is dismissed albeit with no order as to costs. It is so ordered. **Dated and delivered at Kisumu this 26th day of May 2026** **Nzioki wa Makau, MCIArb.** **JUDGE**