https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1810

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NYERI** **ELRC CAUSE NO. E003 OF 2026** **KENYA UNION OF CLINICAL OFFICERS…………………..…CLAIMANT** **VERSUS** **KIAMBU COUNTY PUBLIC SERVICE BOARD………...1ST RESPONDENT** **KIAMBU COUNTY GOVERNMENT……………………..2ND RESPONDENT** **JUDGMENT** 1. The Claimant, described as a duly registered trade union and the sole labour organisation mandated to represent the interests of clinical officers in employment and labour relations matters, instituted the present proceedings vide a Memorandum of Claim dated 20th January 2026. Filed contemporaneously therewith was a Notice of Motion of even date, brought under a Certificate of Urgency, seeking interim relief pending the hearing and determination of the suit. 2. The gravamen of the Claimant’s case is that the Respondents have withheld trade union dues amounting to **Kshs 1,155,840.00** from November 2024, thereby depriving it of revenue. The Claimant contends that the Respondents’ conduct is in breach of the terms of the recognition agreement between the parties. 3. The Claimant further avers that the Respondents’ failure to deduct and remit union dues, notwithstanding *Legal Notice No. 296 of 2017* which directs all employers to deduct and remit such dues into the designated union account, and in the absence of any contrary notice or revocation of the said ministerial order, is unlawful. 4. It is the Claimant’s case that it duly recruited employees of the Respondents into union membership through check-off forms within the meaning of ***Section 48 of the Labour Relations Act,*** and forwarded the duly executed forms to the Respondents for the deduction and remittance of union dues from the wages of employees who had confirmed their membership. 5. It is further averred that the Respondents duly effected the said deductions and remittances up to October 2024, when they stopped the said remittances without any notice or formal communication to the Claimant. 6. It is the Claimant’s position that the Respondents’ conduct amounts to a violation of the Constitution of Kenya and the Labour Relations Act. 7. On the basis of the foregoing, the Claimant seeks the following reliefs against the Respondents: - 8. **Declaration that the action of failure to remit the Trade Union dues as per the amounts specified in the Legal Notice No.296 of 2017 contravenes the mandatory provision of Sec. 48(2) in (b)(ii) of the Labour Relations Act Laws of Kenya, is unlawful, hence null and void.** 9. **Directing the Respondents to immediately resume deducting and remitting union dues to the authorized bank account and as (sic) the Legal Notice No.296 of 2017.** 10. **An Order union directing the Respondents to jointly pay from their own funds an amount of trade union dues in favour of the Claimant, now amounting to Kshs. 1,155,840.00 being unremitted union dues for the Claimant from November, 2024 up to date.** 11. **An order directing the Respondents to jointly pay a penalty of Kshs. 100,000 as required under Sec. 19(5) of the Employment Act Laws of Kenya.** 12. **An order directing the Respondents (sic) interest on the cumulative total of Kshs. 100,000 and Kshs. 1,155,840.00 at the court rate.** 13. **Any other (sic) that the Court may deem just and fit to grant.** 14. **Costs of the suit to be borne by the Respondents.** 15. The Respondents have opposed the Claimant’s Memorandum of Claim and Notice of Motion through their Grounds of Opposition dated 17th February 2026, in which it contends, *inter alia*, that: 16. ***THAT the Claimant/Applicant has failed to discharge the burden of proof as required under the law, and has not placed before the Court any credible evidence to demonstrate that the alleged union deductions were not remitted by the Respondents.*** 17. ***THAT no evidence of non-remittance has been annexed, including but not limited to any demand schedule specifying amounts allegedly deducted and not remitted, any reconciliation statement, any correspondence from the Claimant confirming non-receipt of remittances for specific periods, and any account statements evidencing stoppage or default in remittance.*** 18. ***THAT the Claimant has failed to annex a list of the members of the Union who are in the employment of the Respondent, thereby failing to demonstrate the identity of affected employees, the relevant periods of alleged deductions, and the specific amounts allegedly due per employee.*** 19. ***THAT no check-off forms or written consents from employees have been produced to prove that the employees authorized deduction of union dues from their salaries and the Respondent was lawfully obligated to effect such deductions and remittances.*** 20. ***THAT the alleged Legal Notice by the Cabinet Secretary, without proof of applicability to the Respondent’s employees or proof of compliance requirements being triggered, is insufficient to found the claim.*** 21. ***THAT no payroll records, statutory returns, or internal deduction schedules have been exhibited to demonstrate that deductions were in fact made and withheld from remittance.*** 22. ***THAT in the absence of proof that deductions were effected from employees’ salaries, there can be no lawful claim for remittance.*** 23. The Claimant responded to the Respondents’ Grounds of Opposition through a Further Affidavit sworn on 22nd May 2026 by its General Secretary, ***George Manoah Gibore.*** 24. Mr. Gibore deposes that vide an email dated 3rd March 2026, the Respondents admitted having stopped deductions and remittances on account of administrative and compliance concerns, and further indicated that such deductions would be reinstated upon completion of internal verification processes. He contends that the said actions fall outside the established legal and procedural framework and are calculated to unlawfully deprive the Claimant of its revenue. 25. He further avers that the union has fully complied with all statutory requirements entitling it to receive union dues from its members. 26. Mr. Gibore further asserts that under ***Section 74 of the Employment Act,*** employers are obligated to maintain employment records, which include documentation relating to statutory deductions and the particulars of employees from whom such deductions are made. 27. It is worth pointing out that on 28th May 2026, the parties recorded a consent compromising the Notice of Motion dated 20th January 2026 in terms of prayer 2, whereby the Respondent undertook to resume deductions and remittance of trade union dues in strict compliance with Legal Notice No. 296 of 2017. 28. Consequently, the remaining issue for determination by the Court relates to the alleged accumulated trade union dues. The said issue was canvassed through documentary evidence in accordance with ***Rule 59 of the Employment and Labour Relations Court (Procedure) Rules, 2024.*** **Submissions** 1. It is noteworthy that the Claimant’s submissions were not traceable on the Court’s physical file or on the online portal at the time of writing this judgment. 2. On the Respondents’ part, it has been submitted that the Claimant has failed to produce essential evidentiary material in support of its claim. In particular, it is contended that no check-off forms (Form S) signed by any employee, no schedule or list identifying unionisable employees of the Respondents, no demand letters or correspondence demonstrating prior notification of default, no bank statements evidencing receipt or cessation of remittances, and no payroll records or deduction schedules confirming actual deductions from employees’ wages were tendered in evidence. In support of this position, the Respondents have placed reliance on the decisions in ***Kenya County Government Workers Union v County Government of Vihiga & 4 others (Cause E040 of 2024) [2025] KEELRC 2606 (KLR), Kenya Tertiary & Schools Workers Union v Board of Management, Mbale Secondary School (Cause No. 91 of 2018) [2021] KEELRC 1938 (KLR),*** and ***Kudheiha Workers’ Union v Board of Management Nairobi School [2021] KEELRC 1725 (KLR).*** 3. The Respondents have further submitted that the email dated 3rd March 2026 constitutes an act of prudence and cannot be construed as an admission of breach. It is the Respondents’ contention that the said email does not confirm that any deductions were ever effected, but merely addresses the future management of deductions subject to verification. According to the Respondents, the Claimant’s failure to respond to the request for information further demonstrates its inability to substantiate its claim. 4. The Respondents further contend that the burden of proof rests upon the party asserting the existence of a fact. In this regard, it is their position that the Claimant was first required to establish a prima facie case demonstrating that employees had duly authorised deductions before any obligation of disclosure or discovery could arise. 5. Relying on the decision in ***Lochab Brothers Limited v Transport Workers Union (Civil Appeal No. 46 of 2020) [2024] KECA 965 (KLR),*** the Respondents submit that in the absence of proof of actual deductions, the precondition under ***Section 19(6) of the Employment Act*** is not satisfied. In the same vein, the Respondents contend that no deductions having been proved, the claim for penalty is unsupported and cannot attach. **Analysis and Determination** 1. It is evident that the singular issue for determination by this Court is whether the Respondent should be ordered to remit the sum of **Kshs 1,155,840.00**, being the alleged unremitted trade union dues due to the Claimant from November 2024, together with a penalty of **Kshs 100,000.00.** 2. According to the Claimant, the Respondents duly deducted and remitted trade union dues to its gazetted bank account in accordance with Legal Notice No. 296 of 2017 until October 2024, when they allegedly ceased further remittances. 3. In support of its case, the Claimant relied on an email dated 3rd March 2026 in which the Respondent, through its legal office, indicated that the stoppage of deductions and remittances was occasioned by administrative and compliance concerns relating to the verification of unionised employees. 4. It is therefore not disputed that at some point, the Respondent discontinued the deduction and remittance of trade union dues to the Claimant. 5. In view of the fact that the Claimant’s claim for unremitted trade union dues is quantified at Kshs 1,155,840.00, it follows that the same, being a specific claim, ought to be specifically pleaded and strictly proved. Be that as it may, the Claimant did not demonstrate the basis upon which the said figure was arrived at. 6. In particular, the Claimant did not tender evidence in the form of a list of its members in the Respondents’ workforce, duly executed check-off forms, or schedules indicating applicable deduction rates per employee. Similarly, no pay slips were produced to demonstrate that the Respondents either ceased deducting trade union dues from the Claimant’s members or, having made such deductions, failed to remit the same to the Claimant’s gazetted bank account from November 2024 as alleged. 7. In this regard, the Claimant merely pleaded the sum of Kshs 1,155,840.00 as unremitted trade union dues without adducing sufficient evidence to substantiate how it arrived at the same, thereby falling short of the evidentiary threshold required in law. 8. On this issue, the Court concurs with the decision in ***Capital Fish Kenya Limited v The Kenya Power and Lighting Company Limited ([2016] eKLR*,** in which the Court observed as follows: ***“The appellant apart from listing the alleged loss and damage, it did not…lead any evidence at all in support of the alleged loss and damage. As it were, the appellant merely threw figures at the trial court without any credible evidence in support thereof and expected the court to award* *them.* *Indeed there was not (sic) credible documentary evidence in support of the alleged special damages.”*** 1. Similarly, in the present case, the Claimant has merely presented to the Court a figure Kshs 1,155,840.00 as unremitted trade union dues without laying any evidentiary basis for the said sum. 2. While it is evident that the Respondents, at some point, ceased deducting and remitting trade union dues to the Claimant union, the material placed before the Court does not provide a sufficient basis upon which the Court can find that the Claimant is entitled to the amount claimed or, indeed, to any specific sum. 3. Needless to state, the Court is unable to ascertain whether the Claimant union is indeed entitled to the sum of Kshs 1,155,840.00, or to establish with certainty the actual amount, if any, of unremitted trade union dues. 4. In the circumstances, the Court finds that the Claimant has failed to prove its case to the required standard. 5. In so finding, the Court is cognizant that the employer is the custodian of employment records under ***Section 74 of the Employment Act****.* However, this did not absolve the Claimant of its burden to prove its case to the requisite standard. In any event, it is reasonably expected that the Claimant possesses foundational documentary evidence in support of a claim for unremitted trade union dues, such as duly executed check-off forms and its members’ pay slips. 6. For the foregoing reasons, the Court finds that the claim for **Kshs 1,155,840.00** has not been proved to the requisite standard and is accordingly dismissed, with an order that each party shall bear its own costs. **DATED, SIGNED** and **DELIVERED** at **NYERI** this**26th day**of **June** 2026 ……………………………… **STELLA RUTTO** **JUDGE** **In the presence of**: For the Claimant Mr. Odongo Okatch For the Respondents Mr. Ondere Court Assistant Ndati **ORDER** In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with **Order 21 Rule 1** of **the Civil Procedure Rules**, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court had been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of **Section 1B** of the **Civil Procedure Act (Chapter 21 of the Laws of Kenya)** which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. **STELLA RUTTO** **JUDGE**