https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2111

Kenya Union of Commercial and Food Allied Workers v Transwest Sacco Society Ltd & another (Cause E060 of 2025) [2026] KEELRC 2111 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELRC 2111 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Eldoret Cause E060 of 2025 MA Onyango, J June 18, 2026 Between Kenya Union of Commercial and Food Allied Workers Claimant and Transwest Sacco Society Limited 1st Respondent Transwest Investment Co-operative Limited 2nd Respondent Judgment 1.The Claimant is a trade union registered under the Labour Relations Act and is mandated in its constitution under Rule No. 5 to represent employees in the commercial sector. 2.The 1st Respondent is a registered Savings and Credit Cooperative Organization registered under the laws of Kenya operating in Kitale, Trans Nzoia County with its offices in Ebby Towers, Kitale Town. 3.The 2nd Respondent is a registered Limited Investment Cooperative operating in Kitale, Trans Nzoia County, with its offices situated opposite the Municipal Market, Kwanza – Kapenguria Road. 4.The Claimant and the Respondents have a recognition agreement signed on 4th November, 2024. 5.It is the Claimant’s case that by letter dated 24th April, 2025 it sent a draft Collective Bargaining Agreement proposal to the Respondents to study and for purposes of negotiations. 6.The Claimant avers that the Respondents refused to negotiate forcing the Claimant to report a trade dispute on 16th June, 2025, following which Mr. Toffick Simiyu of Kitale Labour Office was appointed as conciliator. 7.The Claimant avers that it also reported another trade dispute on following the refusal of the Respondents to deduct and remit union dues. 8.The Claimant avers that the Respondents have been forcing the Claimant’s members to withdraw from union membership. That it wrote to the Respondents to desist from intimidation of union members but the Respondents persisted in their adamant behaviour aimed at denying the unionizable employees the right to trade union representation. The Claimant avers that the Respondents have continued with the coercion and intimidation of employees who have been forced to withdraw from union membership. 9.The Claimant avers that the Respondents’ actions amounts to unfair labour practice and is unconstitutional, that the actions violate ILO Conventions 87 and 98, section 48 of the Labour Relations Act and Article 41 of the Constitution. 10.The Claimant avers that the Respondents have since refused, neglected and ignored to deduct and remit union dues despite being served with check-off forms. 11.The Claimant prays for orders as follows:i.That the Respondent to deduct and remit union dues.ii.That the union dues arrears from June 2024, be remitted by the Respondent from their own account.iii.That parties to engage in the negotiation of Collective Bargaining Agreement within 30 days from the date of the judgment.iv.That the Respondent be ordered not to victimize employees on account of their union membership and to stop unfair labour practice.v.That in the event the employer fails to negotiate the Hon. Court to adopt the Claimant proposal as the Collective Bargaining Agreement.vi.This Honourable court grant any other relief as it may deem fit.vii.Cost of the suit to be borne by the Respondent at Kshs. 250,000/=. 12.The Respondents filed a Reply to Statement of Claim dated 5th November, 2025. They deny the averments in the Statement of Claim and aver that the suit as filed does not disclose any cause of action against any of them. 13.The Respondents aver that at the time of filing the claim the Claimant did not have any member among the employees of the Respondents as all the members had withdrawn membership. They thus aver that the Claimant lacks locus standi. 14.The Respondents further aver that the suit herein is an abuse of court process as the dispute has gone through a conciliation process and the conciliator has rendered a decision recommending that the Claimant considers its position, return to the employees for a fresh recruitment process and subsequently re-engage with the Respondents. 15.The Respondents admit signing the recognition agreement for purposes of negotiating a collective bargaining agreement. They however deny that they refused to negotiate a collective bargaining agreement. They further deny that they refused to deduct and remit union dues. 16.The Respondents aver that the suit herein is intended to vex and harass the Respondents to negotiate, deduct and remit union dues despite their members having withdrawn from membership of the Claimant and other members leaving the employment of the Respondents. 17.The Respondents deny forcing the Claimant’s members to withdraw from the union as alleged in the Statement of Claim. They deny engaging in unfair labour practices. 18.They pray that the claim be dismissed with costs. Submissions 19.The Claim was disposed of by way of written submissions. The Claimant’s submissions are dated 16th January, 2026 while the Respondents’ submissions are dated 4th February, 2026. 20.The Claimant submitted under the following heads:a.Whether the 1st and 2nd Respondents should negotiate and sign a Collective Bargaining Agreement with the Claimant Union and deduct and remit union dues;b.Whether the 1st and 2nd Respondents action amounts to unfair labour practice;c.Remedies available, andd.Cost. 21.On the first issue the Claimant submits that the right to freedom of Association and the right to join a trade union are guaranteed under Articles 36 and 41 if the Constitution of Kenya. That these rights are domesticated under the Labour Relations Act which at section 57 provides the framework of collective bargaining agreements. 22.The Claimant submits that in the case of Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers (KUDHEIHA Workers) v Aga Khan University Hospital [2015] eKLR it was held that once recognition exists, both parties have a legal obligation to negotiate in good faith, and the court can direct the parties to commence negotiations. 23.The Claimant further relies on the decision in Kenya Airways v Kenya Airline Pilots Association [2014] eKLR where the court reaffirmed that while the court cannot impose terms of a CBA, it can order parties to engage in genuine negotiations if one side is obstructing the process. 24.On deduction and remittance of union dues the Claimant relied on section 19(1)(f) of the Employment Act which provides which provide that an employer may deduct:(f)any amount the deduction of which is authorised by any written law for the time being in force, collective agreement, wage determination, court order or arbitration award;(g)any amount in which the employer has no direct or indirect beneficial interest, and which the employee has requested the employer in writing to deduct from his wages; 25.The Claimant submits that the allegation that the Respondents were never supplied with check-off form by the Claimant containing the names of employees who subscribed to the Claimant union is untrue as the Respondents signed the recognition agreement based on the check-off forms. 26.On the 2nd issue whether the actions of the 1st and 2nd Respondents amount to unfair labour practice the Claimant submits that after the Respondents held their AGM on 8th May, 2025 the Claimant’s members were coerced into signing pre-typed letters and affidavits prepared by the Respondents withdrawing their membership, with threats of termination of employment if they failed to sign. That the employees signed in order to protect their employment. 27.On remedies the Claimant urged the court to order the Respondents to deduct and remit union dues in accordance with section 48 of the Labour Relations Act, adding that the Respondents are obliged under Article 41(1) and (2) (a) and (b) of the Constitution to observe, respect, promote and uphold the rights of employee to fair labour practice, fair remuneration and reasonable working conditions. 28.That the Respondents employees further have a right to association and to join a trade union as guaranteed under Article 36 and 41 of the Constitution. 29.The Claimant urged the court to award the prayers as per Statement of Claim. 30.The Respondents on their part submitted under the following heads:i.Whether the Respondent should negotiate and sign a collective bargaining agreement with the Claimant,ii.Whether the Respondents’ employees were coerced into not signing a collective bargaining agreement with the Claimant,iii.Whether the Respondents actions amount to unfair labour practicesiv.Remedies available. 31.It is submitted for the Respondents that Article 41(2)(c) provides for the right to form, join or participate in activities and programs of a trade union. 32.It is further submitted that section 4(1) of the Labour Relations Act guarantees every employee the right to:a.participate in forming a trade union of federation of trade unions;b.join a trade union; orc.leave a trade union. 33.The Respondents acknowledge that they signed a recognition agreement with the Claimant and that the Claimant thereafter wrote a letter dated 24th April, 2025 to the Respondents requesting for a meeting to discuss their counter proposals and negotiate the CBA. 34.The Respondents submit that the date proposed by the Claimant was not suitable as it coincided with the date for the Respondents’ AGM. The Respondents aver that instead of seeking another date the Claimant reported a dispute. That after the conciliation meeting on 23rd September, 2025 the conciliator recommended to the Claimant to reconsider its position and return to the employee for a fresh recruitment process and subsequently re-engage the Respondents. 35.According to the Respondents the decision of the Claimant to disregard the recommendation of the conciliator and move to this court is a gross violation of the findings of the conciliator. The Respondents aver that the suit is intended to intimidate and vex the Respondents into giving in to the Claimant’s demands yet the employees pulled out of the union. 36.It is the submission of the Respondents that they cannot be forced to negotiate and sign the CBA or deduct and remit union dues when their employees are not members of the Claimant. 37.On the second issue the Respondents submit that the Claimant has not produced evidence to prove intimidation, victimization threats and to their members while the Respondents produced witness statements of Zipporah Wafula Were and Paul Muohi Kariuki to support the withdrawal of employees from membership of the Claimant. 38.The Respondents referred to the decision in Kenya Union of Commercial Food and Allied Workers v Woolmatt [2020] eKLR where the court held that “without the requisite numbers in the employment of the Respondent, the Claimant cannot negotiate and sign a CBA with the Claimant. The Claimant has not demonstrated that they have the numbers needed and in the circumstance the claim cannot stand.” 39.The Respondent submit that it was clear that the Claimant had not proved intimidation, coercion or victimization of its members while the Respondents had demonstrated that the Claimant had members among the employees of the Respondents. 40.On the third issue the Respondents submit that after signing the recognition agreement the Respondents’ employees were given an opportunity to review and consider the proposed CBA and the Claimant was given an opportunity to discuss the prosed CBA with the Respondents’ employees and misrepresented to them that their salary will be increased once they join the union. That on realization that some amount will be deducted and paid to the union the employees collectively withdrew their membership on 24th July, 2025. 41.The Respondents submit that the Claimant has admitted that it does not have any member among the employees of the Respondents. That no evidence was adduced to prove that the employees were forced to withdraw from the membership of the union or of unfair labour practice. That it would not be in the best interest of the employees of the Respondents to have union dues deducted from their salaries when they had left the membership of the Respondent. 42.The Respondents pray that the suit be dismissed with costs. Analysis and Determination 43.Having considered the pleadings and evidence on record and the submissions of the parties, the issues that arise for determination are the following:i.Whether the Respondent should negotiate and sign a collective bargaining agreement with the Claimant and whether the Respondents actions amount to unfair labour practiceii.Remedies available. Whether the Respondent should negotiate and sign a collective bargaining agreement with the Claimant and whether the Respondents actions amount to unfair labour practice 44.Section 54(1)An employer, including an employer in the public sector, shall recognise a trade union for purposes of collective bargaining if that trade union represents the simple majority of unionisable employees. 45.The implication of the section is that once an employer signs a recognition agreement it is obligated to negotiate a collective bargaining agreement with the union. This is because before recognition a trade union must recruit at least a simple majority of the Respondents employees to be entitled to the recognition. 46.In the instant case the Claimant recruited a simple majority of the employees of the Respondents and was accordingly accorded recognition. The recognition agreement was signed on 4th November, 2024. 47.The Claimant subsequently sent proposals for negotiation of the CBA to the Respondents by letter dated 24th April, 2025. The union proposed a meeting on 8th May, 2025 for negotiations. The Respondents responded by letter dated 2nd May, 2025 to the effect that the date was not suitable as they would be having another meeting on the said date. In the letter the Respondents intimated that the Claimant proposes another date. 48.It is not clear what transpired between the date of the Respondent’s letter and the 16th June, 2025 when the Claimant reported a trade dispute accusing the Respondents of refusing to negotiate the CBA. 49.Soon thereafter the Claimant received letters dated 24th July, 2024 allegedly written by 13 of its members resigning from union membership. 50.What is striking about the letters is that they are all dated the same date and are exactly identical with the exception of the names, ID numbers and email addresses of the employees. One sample of the letters is reproduced below:Salome Nanjala Masika,Snanjala28@gmail.com.ID No:29373193.24th July,2025ToThe Executive Director,Kenya Union of Commercial, Food and Allied WorkersBox 46818-00100NairobiRe:Union Membership Withdrawal.I would wish to withdraw my membership from the union.Consequently, I have instructed my employer Transwest Non WDT Sacco Society Ltd not to deduct or remit any union fee from my monthly payments.Yours Faithfully,Salome Nanjala MasikaSignedSalame Nanjala Masika 51.The Claimant immediately wrote to the Respondents a letter dated 25th July, 2025 accusing the Respondents of intimidation of workers on their union membership. The letter is reproduced below.Kenya Union of Commercial Food and Allied Workers25/7/2025The Chairman,Transwest Sacco Society Ltd,And Transwert Investment Coop LtdBox 794KitaleDear Sir,Ref: Victimization of Workers on their MembershipWe have the information that on 24/7/2025 you held an in house meeting the same meeting you started calling employees to threaten them to withdraw their membership from union.Please take note that the laws of this country Labour Relations Act 2007, the Constitution of Kenya 2010, Employment Act 2007 and other laws which are the supreme entities to guide both parties to comply.This union cannot tolerate those negative attitudes against our members, I you cant desist we shall take necessary action towards that behaviour for further directions.Yours faithfully,SignedRodgers OmbatiBranch Secretary North Rift RegionCcThe Acting General SecretaryKUCFAWBox 46818 NairobiThe County Labour OfficerTrans Nzoia CountyBox 250 KitaleAll EmployeesTranswest Sacco Society Ltd and Investment Coop. LtdBox 794 Kitale 52.The Claimant thereafter by letter dated 7th August, 2025 reported another trade dispute on failure by the Respondents to deduct and remit union dues. 53.The Respondents have attached two witness statements from two employees Paul Muohi Kariuki and Zipporah Nafula Were in which they state that they withdrew from the membership of the Claimant union after they learned that besides the joining fee which they had paid they were supposed to pay a monthly subscription of Kshs. 200. The witness statements were however not sworn and cannot be treated as evidence where the makers have not adopted or had them sworn. 54.In the present case there is no doubt that there is a valid recognition agreement in place. The legality of the recognition agreement has not been challenged by the Respondents. 55.The law is clear that once an employer has signed a recognition agreement, it is obligated to negotiate a collective bargaining agreement with the union. The law does not state that there can be no negotiations where the employees resign while the CBA negotiations are pending. 56.As pointed out above, the resignations came the same day and are worded in identical terms. the Respondent did not deny that the same were written soon after they held a meeting with the employees, at which the Claimant avers they were threatened and forced to resign from union membership. The court is inclined to believe that the employees were coerced into withdrawing from union membership based on the identical dates and wording of the letters which are all typed with the same font. This cannot be a coincident. 57.This being the case, the Respondent is hereby directed to negotiate the CBA with the Claimant under the chairmanship of the Mr. Toffick Nalianya, County Labour Officer, Trans Nzoia. Should the parties disagree or should the Respondent refuse to negotiate, the Claimant is at liberty to come to this court to determine the issues not agreed upon. 58.This matter shall be mentioned in 30 days to confirm compliance with this court’s orders. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 18TH DAY OF JUNE, 2026MAUREEN ONYANGOJUDGE