https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2068

Kenya Union of Clinical Officers v Nyeri County Public Service Board & another (Employment and Labour Relations Cause E044 of 2025) [2026] KEELRC 2068 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEELRC 2068 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nyeri Employment and Labour Relations Cause E044 of 2025 SC Rutto, J July 16, 2026 Between Kenya Union Of Clinical Officers Claimant and Nyeri County Public Service Board 1st Respondent Nyeri County Government 2nd Respondent Judgment 1.The Claimant commenced these proceedings by filing a Memorandum of Claim dated 3rd October 2025, alleging that the Respondents had unlawfully ceased deducting and remitting trade union dues with effect from November 2024 and had failed to comply with Gazette Notice No. 296 of 2017. 2.Contemporaneously filed with the Memorandum of Claim, the Claimant filed a Notice of Motion dated 3rd October 2025 seeking, on an interim basis, orders compelling the Respondents to fully implement Gazette Notice No. 296 of 2017 and restraining them from unlawfully stopping the deduction and remittance of trade union dues. 3.The Memorandum of Claim and the Motion were opposed. In their joint Response, the Respondents denied withholding or failing to deduct and remit trade union dues to the Claimant union. The Respondent’s case is that, sometime in November 2024, they received a duly executed resolution together with written instructions from officials of the Claimant's Nyeri Branch directing that the union dues be remitted to the branch account. The Respondents maintain that they acted on those instructions in the bona fide and reasonable belief that the branch officials were duly authorised to issue such directions on behalf of the Claimant. 4.The matter was mentioned before the Court on three (3) separate occasions, during which the parties were afforded an opportunity to pursue an out-of-court settlement with a view to resolving the dispute amicably. 5.When the matter came up for mention on 11th May 2026, the parties informed the Court that there were no outstanding deductions due to the Claimant union. They further indicated that the only issue remaining for determination concerned the deductions that had already been remitted by the Respondents to the Claimant's Nyeri Branch. 6.Thereafter, by consent, the parties agreed that the dispute be determined on the basis of the affidavit evidence together with written submissions. Claimant’s Case 7.The Claimant relied on the Affidavit sworn by its General Secretary, George Gibore, on 5th December 2025. 8.In his Affidavit, Mr. Gibore deposes that the Claimant entered into a Recognition Agreement with the 2nd Respondent on 19th December 2017, by virtue of which the Claimant has the locus standi as the trade union representing clinical officers employed by the 1st Respondent. 9.He further avers that Gazette Notice No. 296 of 2017 requires all employers of the Claimant's members to deduct and remit trade union dues from their wages. According to him, the Respondents' failure to deduct and remit the dues is unlawful as it contravenes the said Gazette Notice as well as Section 48 of the Labour Relations Act. 10.Mr. Gibore states that the Claimant issued the Respondents with a demand letter dated 25th April 2025, but no response was forthcoming. 11.He further deposes that, pursuant to Article XI of the Claimant's Constitution and Rules, the Claimant operates only one gazetted bank account into which trade union dues are to be remitted. 12.According to Mr. Gibore, upon being served with the requisite check-off forms, the Respondents commenced deducting and remitting union dues to the Claimant. However, from November 2024, they allegedly ceased remitting all trade union dues deducted from the Claimant's members into the authorised bank account. 13.It is his contention that once the Respondents were served with Form S and became aware of Gazette Notice No. 296 of 2017, they became statutorily obligated under Section 19(6) of the Employment Act to make good any unremitted union dues from their own funds. 14.Mr. Gibore further deposes that payment of union dues is a condition of membership and that the Respondents' actions amount to interference with the affairs and programmes of the Claimant, thereby infringing the right of workers to join and participate in the activities of a trade union as guaranteed under Article 41 of the Constitution. 15.He adds that none of the Claimant's members has withdrawn from the union and, consequently, there is no lawful basis for the Respondents to discontinue the deduction of union dues. 16.Mr. Gibore further states that the Claimant registered its Nyeri Branch on 29th June 2020. He maintains that neither the Claimant's National Executive Council nor he, in his capacity as General Secretary, has ever authorised the branch to receive trade union dues into its own bank account. 17.Mr. Gibore is of the view that the Respondents' conduct is unreasonable, arbitrary, capricious and unprocedural. Respondent’s Case 18.The Respondents relied on the Affidavit sworn on 15th June 2026 by Edward Irungu Mwangi, the 2nd Respondent’s County Secretary. 19.Mr. Mwangi deposes that, following the execution of the Recognition Agreement, the Respondents consistently remitted trade union dues to the Claimant's gazetted bank account in accordance with the Labour Relations Act and the Gazette Notice issued by the Cabinet Secretary. 20.He further avers that, sometime in November 2024, the Respondents received a duly signed resolution together with written instructions from officials of the Claimant's Nyeri Branch directing that the trade union dues be remitted to the branch account instead of the gazetted account. 21.According to Mr. Mwangi, the Respondents acted upon those instructions in good faith and on the reasonable belief that the branch officials were duly authorised to issue such directions on behalf of the Claimant. 22.Mr. Mwangi further states that the Respondents did not unilaterally alter the destination account for the remittance of union dues. Rather, the change was occasioned solely by the written resolution and instructions issued by officials of the Claimant's Nyeri Branch. He adds that the Respondents had no reason to suspect the existence of any internal administrative or leadership dispute between the Claimant's national office and its Nyeri Branch. 23.He deposes that from November 2024, the Respondents continued to deduct union dues from eligible employees and remit the same on a monthly basis to the Claimant's Nyeri Branch account in accordance with the instructions received. 24.It is Mr. Mwangi's contention that the allegation that the Respondents withheld or failed to remit union dues is unfounded, as all deductions were duly remitted, albeit to the Claimant's Nyeri Branch account. 25.Mr. Mwangi further avers that the Respondents neither participate in nor oversee the internal governance or accountability structures of trade unions and, accordingly, had no basis for questioning the legitimacy of the account communicated by the officials of the Claimant's Nyeri Branch. 26.He further states that, prior to the institution of these proceedings, the Claimant never notified the Respondents that the Nyeri Branch account to which the remittances were being made was irregular or unauthorised. 27.Mr. Mwangi adds that following the commencement of these proceedings, the Respondents reverted to remitting all trade union dues to the account designated by the Claimant. 28.He further deposes that the Respondents are not presently withholding, retaining or failing to remit any trade union dues. 29.Mr. Mwangi further contends that the Claimant failed to join the officials of its Nyeri Branch who issued the written instructions and who received the remitted funds. 30.According to Mr. Mwangi, any dispute concerning the authority of those officials or the utilisation of the remitted funds is an internal matter within the Claimant union and cannot be visited upon the Respondents, who acted bona fide and in accordance with the instructions communicated to them. 31.He further contends that the Claimant has not demonstrated that it suffered any financial loss, the disputed monies having been remitted to an account operated by the Claimant's Nyeri Branch. 32.Mr. Mwangi further asserts that requiring the Respondents to remit the same union dues a second time would amount to unjust enrichment, the funds having already been paid into a bank account belonging to the Claimant's Nyeri Branch. Submissions 33.On the Claimant’s part, it has been submitted that all negotiations relating to its activities can only be conducted with the authority and consent of the General Secretary, which in this case has never sanctioned any local arrangement with the Branch in so far as the remittance of Trade Union dues is concerned. On this score, the Claimant contends that there was a conspiracy between the Respondents and the errant Branch officials to defraud the Claimant in utter contravention of the existing Laws. 34.The Claimant has further posited that where an employer is under a statutory obligation to deduct and remit trade union dues to a trade union or federation of trade unions, any failure to deduct and remit such dues as required by law, or any failure to remit dues after they have been deducted, renders the employer liable to pay the outstanding amounts from its own funds and remit them in accordance with the order issued by the Cabinet Secretary. 35.In the same vein, the Claimant has submitted that such uncollected dues from the unionised employees cannot be received from the employees as the Respondent is at fault. In the Claimant’s view, this gives effect to the employees' right to associate and unionise under Articles 36 and 41. 36.On the other hand, the Respondents have submitted that the statutory scheme established under Sections 48 and 50 of the Labour Relations Act, is intended to address a specific mischief, namely, a situation where an employer deducts trade union dues from employees’ salaries and thereafter fails, neglects or refuses to transmit the same to the trade union, thereby unjustly enriching itself and depriving both the employees and the trade union of the benefits attendant to union membership. According to the Respondents, the purpose of these provisions is to prevent employers from retaining or appropriating monies held in trust for the union. 37.The Respondents have further posited that the present dispute does not fall within the ambit of the aforesaid statutory mischief. They maintain that at no time did they retain, convert, appropriate or otherwise utilise the deducted monies for their own benefit. 38.The Respondents further contend that there is no evidence whatsoever demonstrating that the deductions remained in the County's accounts or that the Respondents derived any pecuniary advantage therefrom. 39.The Respondents have maintained that the remittances were made pursuant to instructions and directions received from the Claimant's branch officials and were effected in the bona fide belief that the said account was an authorized account for purposes of receiving trade union dues on behalf of the Claimant. 40.It is the Respondents' contention that the Claimant has not placed before the Court any evidence to demonstrate that the remittances were fictitious, reversed, refunded to the Respondents, or retained by them. The Respondents further contend that there is no evidence to demonstrate that they acted fraudulently, dishonestly, or in bad faith. 41.The Respondents have further maintained that the real issue before this Court is not whether they failed to remit the trade union dues, but rather, the issue is whether remittances made to the Claimant's Nyeri Branch account, pursuant to instructions issued by the Claimant's own branch officials, can subsequently be impugned by the Claimant and be treated as constituting non-remittance under the Labour Relations Act. 42.Referencing the cases of Nairobi ELRC CAUSE NO 684(B) of 2014 Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers (KUDHEIHA) V British Army Training Unit Kenya and Nairobi ELRC Kenya Shoe and Leather Workers Union V Megh Singh Cushion Makers Limited (Cause E556 OF 2022) [2024] KEELRC 2381 (KLR) and Nairobi ELRC Petition E087 Of 2023 Universities Academic Staff Union (UASU) v Moi University (Employment And Labour Relations Petition E087 OF 2023) [2024] KEELRC 270 (KLR), the Respondents maintain that they fulfilled the core statutory obligation of deduction and remittance and that the dispute is the destination account following instructions from the Claimant's branch officials. 43.The Respondents have further submitted that the non-joinder of the officials of the Claimant's Nyeri Branch, who issued the instructions complained of and received the remitted funds, is significant because they are necessary parties for the complete and effectual adjudication of the questions before the Court. 44.It is the Respondent’s position that this Court cannot fairly determine whether the branch officials acted with authority, whether the monies were received, how they were applied and whether any remittance was subsequently made to the national office without hearing from the very persons who issued the instructions and received the funds. 45.The Respondents have further submitted that any dispute concerning the authority of the branch officials or the utilization of the remitted funds is an internal matter within the Claimant Union. To buttress the Respondents’ position, reliance has been placed on Meru ELRC Case No. 32 of 2018 Kenya National Union of Nurses v Meru County Public Service Board & Meru County Government and Kisumu ELRC Cause No. 391 of 2015 Kenya National Union of Nurses v Kakamega County Public Service Board & 2 Others [2016] KEELRC 431 (KLR). Analysis and Determination 46.Upon considering the affidavit evidence on record together with the parties' written submissions, the Court finds that the sole issue for determination is whether the Respondents should be ordered to pay to the Claimant, from their own funds, the sum that was remitted to the Claimant's Nyeri Branch account. 47.It is common ground that from November 2024 until the institution of these proceedings, the Respondents deducted trade union dues from the wages of the Claimant's members in their employment and remitted the same to the Claimant's Nyeri Branch account. 48.The Respondents have consistently maintained that the remittances were made to the Nyeri Branch account after they received a duly signed resolution together with written instructions from officials of the Claimant's Nyeri Branch directing that future remittances be made to that account. 49.The Claimant, on the other hand, maintains that all matters relating to the administration and affairs of the union, including the designation of the account into which trade union dues are to be remitted, fall within the authority of its General Secretary. It is the Claimant's case that neither its National Executive Council nor the General Secretary ever authorised the Nyeri Branch to receive trade union dues into its branch account. 50.In support of their position, the Respondents produced minutes of a meeting of the Claimant's Nyeri Branch held on 13th September 2024. The minutes indicate that one of the agenda items concerned the change of the bank account for branch remittances and to that end, a resolution was passed directing that all monthly deductions from the County be remitted directly to the branch account specified therein. 51.The Respondents further produced bank transfer records evidencing that, following the said resolution and instructions, the deducted trade union dues were remitted to the Claimant's Nyeri Branch account. 52.Sections 48(2) and (3) and 50 of the Labour Relations Act impose a statutory obligation upon an employer to deduct trade union dues from unionisable employees and remit the same to the bank account specified in the order published by the Cabinet Secretary. 53.In the present case, the material on record demonstrates that the Respondents complied with the obligation to deduct trade union dues from the Claimant's members. The only point of departure is that the remittances were made to the Claimant's Nyeri Branch account rather than to the gazetted account. Consequently, this is not a case in which the Respondents refused or failed to effect the trade union deductions upon being served with valid check-off forms, nor is it one in which the deducted union dues were unlawfully withheld or retained by the Respondents. 54.The evidence further demonstrates that the Respondents acted upon written instructions issued by officials of the Claimant's Nyeri Branch. In the absence of evidence suggesting fraud, dishonesty or bad faith on the part of the Respondents, the erroneous remittance cannot properly be attributed to any deliberate or fraudulent conduct on their part. 55.Therefore, in as much as the Respondents remitted the trade union dues to an account other than the one designated under Gazette Notice No. 296 of 2017, the Court finds that it would not be conscionable in the circumstances herein to order the Respondents to pay, from their own funds, the amounts that had already been deducted and remitted to the Claimant's Nyeri Branch account. 56.The Court further notes that, following the commencement of these proceedings, the Respondents regularised the position and resumed remitting trade union dues to the Claimant's gazetted bank account. 57.To this end, the prayer seeking an order compelling the Respondents to pay, from their own funds, a sum equivalent to the dues previously remitted to the Nyeri Branch account is declined. 58.In my considered view, this is an internal matter to be resolved between the Claimant union and its branch. 59.For the avoidance of doubt, the Respondents shall continue deducting trade union dues from the Claimant's members in their employment and remit the same to the gazetted bank account in accordance with Gazette Notice No. 296 of 2017 and the provisions of the Labour Relations Act. 60.In view of the nature of the dispute herein and the circumstances giving rise to these proceedings, the Court is inclined to order that each party bears its own costs. DATED, SIGNED AND DELIVERED AT NYERI THIS 16TH DAY OF JULY 2026.………………………………STELLA RUTTOJUDGEIn the presence of:For the Claimant Mr. OdongoFor the Respondents No appearanceCourt assistant NdatiORDERIn 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 RUTTOJUDGE