https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2062

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **ELRC CASE NO. E028 OF 2025** *(Before Hon. Lady Justice Maureen Onyango)* **KENYA UNION OF DOMESTIC HOTELS,** **EDUCATIONAL INSTITUTIONS AND HOSPITAL WORKERS(KUDHEIHA) ……….….…………………………. CLAIMANT** **VERSUS** **BOARD OF MANAGEMENT** **KAPSABET HIGH SCHOOL …………………….……… RESPONDENT** **JUDGMENT** 1. The Claimant is a trade union registered under the [Labour Relations Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2007/14) and is mandated in its constitution under Rule No. 3 to represent non-teaching staff engaged by Boards of Management in both private and public Educational Institutions. 2. The Respondent is a public educational institution run by a duly constituted Board of Management under the Education Act. 3. The Claim herein was instituted by way of a Statement of Claim dated 26th May 2025, which was subsequently amended on 15th October 2025. In the amended Statement of Claim, the Claimant seeks the following reliefs: 4. A declaration that Respondent’s action is unfair, unlawful and illegal, 5. The Respondent be compelled to lawfully remit union dues and sign the recognition agreement within thirty (30) days and immediately commence and conclude negotiation of collective bargaining agreement within ninety (90) days, 6. Costs, 7. Any other relief this Honourable Court may deem fit. 8. In its Statement of Claim, the Claimant avers that, pursuant to Legal Notice No. 262, the employment of non-teaching staff was transferred from the Ministry of Education to individual Boards of Governors, now known as Boards of Management. It further avers that Legal Notice No. 263 obligated Boards of Management to enter into Recognition Agreements with trade unions competent to negotiate terms and conditions of service on behalf of their members. 9. The Claimant states that it wrote to the Secretary of the Respondent's Board of Management requesting an opportunity to conduct an educational meeting with the non-teaching staff. Following that request, the Principal convened a meeting with the non-teaching staff on 20th April 2023, during which the Claimant educated the employees on trade union membership. 10. The Claimant avers that it subsequently recruited eighty-two (82) employees of the Respondent through duly executed check-off forms bearing Serial Nos. 001627, 001628, 001630 and 001632, signed between 20th April 2023 and 23rd May 2023. According to the Claimant, the Respondent contended that thirty-two (32) of those employees were engaged on casual or temporary terms and were therefore ineligible for union membership, leaving fifty (50) employees on permanent and pensionable terms. The Claimant maintains that it had recruited forty-seven (47) of the fifty (50) eligible employees, representing ninety-four per cent (94%) of the eligible workforce, thereby attaining more than the statutory simple majority threshold of fifty per cent plus one (50%+1). 11. The Claimant further avers that it forwarded the duly executed check-off forms together with the authority to deduct and remit union dues to the Respondent, effective 31st May 2023, in accordance with sections 48, 49 and 50 of the Labour Relations Act. 12. The Claimant states that despite forwarding the check-off forms, the Respondent failed to effect the deductions, prompting it to issue reminder letters dated 1st March 2024, 7th March 2024, 25th March 2024 and 30th June 2024. 13. The Claimant further avers that, by a letter dated 20th March 2024 it forwarded a draft Recognition Agreement to the Respondent for consideration and requested that the parties execute the agreement before 19th April 2024. 14. According to the Claimant, upon observing the Respondent's unwillingness to execute the Recognition Agreement, its Branch Secretary formally reported a trade dispute under the Labour Relations Act, 2007. Consequently, the Ministry of Labour and Social Protection, State Department for Labour and Skills Development, appointed Mr. Dismas Wakhaya of the Nandi Hills Labour Office as Conciliator through a letter dated 12th August 2024, Reference No. MLSP/LD/IR/S/IS8/2024. 15. The Claimant avers that the Conciliator convened the first conciliation meeting for 9th October 2024 through a letter dated 30th September 2024. It contends that the Respondent was represented only by its Finance Officer, who lacked authority to execute the Recognition Agreement on its behalf, and further failed to file its memorandum as required during the conciliation proceedings. According to the Claimant, this conduct demonstrated the Respondent's unwillingness to execute the Recognition Agreement. 16. The Claimant further states that the Conciliator convened a second conciliation meeting scheduled for 26th November 2024 through a letter dated 15th November 2024 for purposes of executing the Recognition Agreement. The Respondent, however, failed to attend the meeting. 17. The Claimant avers that, by its letter dated 14th November 2024, it informed the Labour Officer that KUDHEIHA had attained the statutory threshold of more than fifty per cent plus one (50% + 1), as confirmed during the first and second conciliation meetings, and requested that both parties be invited to a third meeting for execution of the Recognition Agreement. 18. The Claimant further states that the third conciliation meeting was postponed twice through letters dated 20th January 2025 and 28th January 2025 before being rescheduled for 11th February 2025. It avers that, once again, the Respondent was represented by its Finance Officer, who expressly acknowledged that he lacked authority to execute the Recognition Agreement on behalf of the Principal. According to the Claimant, this further demonstrated the Respondent's unwillingness to execute the Recognition Agreement. 19. The Claimant further avers that, through a letter dated 21st March 2025, the Principal informed both the Labour Officer and the Claimant that the Respondent had engaged the services of a Human Resource Manager, which, according to the Claimant, confirmed its unwillingness to execute the Recognition Agreement. 20. The Claimant states that the Conciliator issued a Certificate of Unresolved Dispute dated 1st April 2025 after all efforts to have the Respondent execute the Recognition Agreement proved unsuccessful. 21. The Respondent filed an Amended Statement of Defence and Response to the Amended Statement of Claim dated 27th April 2026, denying the allegations contained in the Claim. The Respondent contends that the documents relied upon by the Claimant as check-off forms merely comprise attendance lists of persons who attended the meeting held on 20th April 2023 and do not bear the signatures of the employees authorizing the deduction of union dues from their salaries. The Respondent avers that it has no legal mandate to deduct and remit union dues in the absence of duly executed authorization forms. It further maintains that the Claimant's purported list of seventy-five (75) recruited employees is not authentic, as the employees merely signed an attendance register for the meeting held on 20th April 2023 and did not execute any union recruitment or check-off forms. 22. The Respondent denies refusing to execute a Recognition Agreement and maintains that recognition can only be granted upon proper recruitment of eligible employees into the Claimant's union. It avers that a significant number of the individuals appearing on the Claimant's purported membership list were casual employees who have since left employment, while others have retired, thereby rendering the alleged membership figures inaccurate. 23. The Respondent further avers that during a joint meeting held on 15th March 2026 at the school's multipurpose hall between its non-teaching staff and officials of the Claimant, the Claimant explained its intentions to the employees. According to the Respondent, sixty-two (62) eligible employees expressly stated that they had never been formally recruited as members of the Claimant union and consequently issued written instructions to the school's management directing that no deductions be made from their salaries in favour of the Claimant. The Respondent relies on the written instructions exhibited in support of its defence. 24. The Respondent further states that the remaining twenty-four (24) eligible employees did not indicate whether they were members of the Claimant's union or whether they consented to the deduction and remittance of union dues from their salaries. 25. Consequently, the Respondent maintains that the Claimant has failed to attain the statutory threshold of more than fifty per cent plus one (50% + 1) required for recognition. It therefore contends that it is under no legal obligation to execute a Recognition Agreement or to negotiate a Collective Bargaining Agreement with the Claimant. The Respondent further avers that every eligible employee has the constitutional right to join or refrain from joining a trade union of his or her choice, and that it can only deduct and remit union dues upon receiving the employee's express written authorization. It maintains that it is willing, able and ready to remit union dues in respect of any employee who provides the requisite written authority. 26. The court was urged to dismiss the claim with costs to the Respondent. 27. The suit was disposed of by way of written submissions. The Claimant’s submissions are dated 15th May 2026 while the Respondent’s submissions are dated 4th June 2026. ***The Claimant’s submissions*** 1. In its submissions, the Claimant identified the issues for determination to be: - 2. Whether the employees of the Respondent validly authorized the deduction of union dues and whether the Respondent is under statutory obligation to deduct and remit the same and if the refusal constitutes a violation of the law and an unfair labour practice 3. Whether the Claimant has attained a simple majority of unionisable employees and whether the Respondent's refusal to sign the Recognition Agreement and recognize the Claimant is unlawful. 4. Whether the Claimant is entitled to the reliefs sought. 5. On the first issue, the Claimant submitted that it lawfully recruited eighty-two (82) employees of the Respondent in 2023 through duly executed check-off authorization forms. That the executed check-off forms, together with letters authorizing the deduction and remittance of union dues, were duly served upon the Respondent for implementation. According to the Claimant, despite repeated reminders and follow-up correspondence, the Respondent persistently failed and/or refused to deduct and remit the union dues. 6. The Claimant relied on section 48 of the Labour Relations Act, 2007, and submitted that the provision imposes a mandatory statutory obligation upon an employer to deduct union dues from the wages of an employee who has signed a check-off form authorizing such deduction and to remit the deducted dues to the trade union within the prescribed time. 7. It was further submitted that the Respondent's unionisable employees voluntarily joined the Claimant union and duly executed check-off forms authorizing the deduction and remittance of union dues, all of which were formally served upon the Respondent. 8. According to the Claimant, once an employee executes a valid check-off authorization, the employer's statutory obligation to deduct and remit union dues crystallizes immediately and is not dependent upon any further consent by the employee or any additional conditions imposed by the employer. 9. The Claimant further submitted that the Respondent's reliance on documents allegedly prepared by its management and purportedly signed by employees in April 2026, directing that union dues should not be deducted, was irregular and legally untenable. 10. It was argued that the said documents emerged more than two years after the Claimant had recruited the employees and after the Respondent's statutory obligation under section 48 of the Labour Relations Act had already arisen. Consequently, the Claimant questioned the authenticity, timing and motive behind the documents and maintained that they could not override or extinguish the Respondent's statutory obligation to deduct and remit union dues. 11. The Claimant therefore maintained that, having received duly executed check-off forms authorizing deduction of union dues, the Respondent was under a statutory obligation to commence and continue deducting and remitting the dues. It submitted that the Respondent's refusal to do so was unlawful and urged the Court to order the Respondent to pay, from its own funds, all outstanding union dues from the date of receipt of the check-off forms until full compliance, without recovering the same from the affected employees, so that it would not benefit from its own breach of the law. 12. In support of its submissions, the Claimant relied on *Kenya Union of Domestic, Hotels, Educational Institutions & Hospital Workers (KUDHEIHA) v Aga Khan University Hospital*, ELRC Cause No. 1150 of 2012, *Plantation & Agricultural Workers Union v James Finlay (Kenya) Ltd*, ELRC Cause No. 24 of 2013 and Kenya *Shoe & Leather Workers Union v Crown Industries Ltd*, ELRC Cause No. 1954 of 2017. The Claimant also cited *Banking Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Ltd*, ELRC Cause No. 95 of 2014, where the Court held that a duly signed check-off form is sufficient authority for deduction of union dues and that an employer's refusal to effect such deductions amounts to a breach of its statutory obligations and an infringement of employees' freedom of association. 13. On the second issue whether the Claimant attained the statutory simple majority required for recognition and whether the Respondent's refusal to execute a Recognition Agreement was unlawful, the Claimant submitted that it had recruited eighty-two (82) employees, thereby attaining a clear simple majority of the Respondent's unionisable workforce. It argued that, having satisfied the threshold prescribed under section 54 of the Labour Relations Act, 2007, it became entitled to recognition and the Respondent was consequently obligated to execute a Recognition Agreement. 14. The Claimant further submitted that there was neither evidence nor any pleaded allegation demonstrating that the recruited employees had withdrawn their union membership or revoked their check-off authorizations. It argued that in the absence of any lawful withdrawal, the simple majority previously attained remained intact, thereby rendering the Respondent's refusal to recognize the Claimant unlawful and unjustified. The Claimant submitted that the jurisprudence of the Employment and Labour Relations Court consistently supports this position. 15. Lastly, on whether it is entitled to the reliefs sought, the Claimant submitted that eighty-two (82) out of the Respondent's ninety-one (91) unionisable employees, representing approximately 90.1% of the unionisable workforce, had executed valid check-off forms, thereby exceeding the statutory threshold prescribed under section 54 of the Labour Relations Act, 2007. 16. The Claimant further submitted that section 48 of the Labour Relations Act imposes a mandatory obligation upon the Respondent to deduct and remit union dues. It argued that no evidence had been adduced demonstrating that any employee had withdrawn from union membership or revoked his or her check-off authorization. Despite this, the Respondent had allegedly refused to comply with its statutory obligations, ignored the Claimant's formal demands and acted in bad faith by coercing employees to renounce their union membership. According to the Claimant, such conduct violated sections 48 and 54 of the Labour Relations Act, Article 41 of the Constitution on fair labour practices and freedom of association, and the obligation to participate in conciliation in good faith. 17. Consequently, the Claimant urged the Court to allow the Claim and, in particular, to order the Respondent to pay, from its own funds, all union dues that ought to have been deducted and remitted from the date of receipt of the check-off forms until full compliance. ***The Respondent’s submissions*** 1. In its written submissions, the Respondent framed the following issues for determination: - 2. Whether the Claimant properly and lawfully recruited the Respondent's employees into its union, 3. Whether the Claimant attained the threshold required to entitle it to recognition by the Respondent, 4. Whether the Respondent can be compelled to execute a Recognition Agreement and deduct union dues from its employees' salaries without their consent, 5. Whether the Claimant is entitled to the reliefs sought. 6. On the first issue, the Respondent submitted that the Claimant's case is founded entirely upon what it describes as an unsigned attendance list for a meeting held on 20th April 2023, convened pursuant to the Claimant's letter dated 3rd April 2023 (marked PG-17). According to the Respondent, the meeting merely introduced the Claimant to its employees and did not disclose that employees who elected to join the union would have two per cent (2%) of their salaries deducted and remitted to the Claimant as union dues. 7. The Respondent further submitted that the attendance list relied upon by the Claimant is unsigned and does not contain union membership numbers, thereby demonstrating that the employees were merely introduced to the union and were not recruited as members on 20th April 2023. 8. It was further submitted that had the Claimant properly recruited its members, the employees would have been fully aware of the terms and conditions of union membership, including the deduction of union dues from their salaries. According to the Respondent, the majority of its employees expressed shock and disbelief when informed that union dues would be deducted from their salaries and consequently instructed the Respondent not to effect any deductions without their express consent. 9. The Respondent further contended that, upon realizing the weakness of its case, the Claimant resorted to relying on undated and unsigned letters allegedly authored by unidentified employees in an attempt to persuade the Court to compel recognition of the union and authorize deductions from employees' salaries without their consent. 10. It was further submitted that the Claimant's conduct demonstrates an intention to forcefully recruit members through unlawful means. The Respondent argued that, had the employees genuinely joined the union, the undated and unsigned letter appearing at page 8 of the Claimant's bundle would have been properly addressed and signed by an identifiable employee rather than, in its view, having been prepared in secrecy. Counsel submitted that joining a trade union is contractual in nature and therefore requires the free and informed consent of the employee. According to the Respondent, the Claimant misrepresented the purpose of the documents signed by employees by presenting them as attendance forms for a meeting while subsequently seeking to treat them as check-off authorizations. The Respondent argued that the Court should not be used to compel execution of a Recognition Agreement or deduction of employees' salaries on the basis of such documents. In support of that position, the Respondent relied on *Kenya Shoe & Leather Workers Union v Crown Industries Ltd & Another* [2017] eKLR 11. The Respondent maintained that the Claimant relies solely on an attendance list from the introductory meeting held on 20th April 2023 rather than valid check-off forms, and therefore failed to properly or lawfully recruit the Respondent's employees. It submitted that the Claimant is merely attempting to invoke the Court's powers to compel recognition despite having failed to satisfy the statutory requirements. 12. On the second issue, the Respondent submitted that it is settled law that an employer is required to execute a Recognition Agreement only after the trade union has recruited a simple majority, being fifty per cent plus one (50% + 1), of the employer's unionisable employees. According to the affidavits sworn by the Respondent's Secretary, Mr. Kipchumba Maiyo, and its Human Resource Manager, the Respondent has ninety-three (93) unionisable support staff. 13. The Respondent submitted that during the meeting held on 14th April 2026 between the Claimant and its employees, eighty-six (86) employees attended, while seven (7) were on leave. Of those present, sixty-two (62) expressly declined to have two per cent (2%) of their salaries deducted as union dues, as evidenced by Annexure KM-1, while twenty-four (24) employees remained silent on the issue. 14. The Respondent further submitted that it subsequently issued blank authorization forms to each of the ninety-three (93) unionisable employees to enable them indicate whether they consented to the deduction of union dues. According to the Respondent, sixty-six (66) employees expressly instructed that no deductions be made from their salaries, while twenty-seven (27) employees neither accepted nor rejected the proposed deductions. 15. Citing section 54(1) of the Labour Relations Act, the Respondent submitted that sixty-six (66) out of the ninety-three (93) unionisable employees, representing approximately 70.98%, expressly declined union membership by directing that no deductions be made from their salaries. Even if all the remaining twenty-seven (27) employees who remained silent were treated as members of the Claimant's union, they would constitute only 29.02% of the unionisable workforce, well below the statutory threshold. In support of this argument, the Respondent relied on *Kenya Union of Commercial Food & Allied Workers v Miniso Lifestyle (K) Ltd* (2025) KEELRC 474 (KLR) and *Aviation & Allied Workers Union v Air Kenya Express Ltd & Another* [2013] eKLR. 16. The Respondent submitted that the Claimant failed to attain the statutory threshold required under section 54(1) of the Labour Relations Act and that the Respondent was therefore under no legal obligation to execute a Recognition Agreement. 17. On the third issue, namely whether the Respondent can be compelled to execute a Recognition Agreement and deduct union dues without the employees' consent, the Respondent submitted that since approximately 70.98% of its unionisable employees expressly declined union membership, the Claimant had failed to satisfy the statutory threshold for recognition. In support of this position, the case of *Kenya Private Universities Workers Union v Mount Kenya University* (Cause No. 117 of 2020) (2024) KEELRC 665 (KLR) was cited. 18. The Respondent therefore submitted that if the Claimant had genuinely recruited its employees into the union, those employees would willingly remit union dues. It argued that the Court should not be used to compel the Respondent to deduct two per cent (2%) of employees' salaries where the employees had expressly withheld their consent, as doing so would amount to sanctioning an illegality. 19. Lastly on whether the Claimant is entitled to the reliefs sought, the Respondent submitted that the Claimant is improperly relying on a meeting attendance list in an attempt to persuade the Court to compel recognition, force recruitment of employees into the union, require execution of a Recognition Agreement and authorize deduction of union dues despite the express wishes of the majority of the Respondent's employees. 20. The Respondent consequently submitted that the Claimant has failed to satisfy the statutory requirements and threshold necessary for the grant of the orders sought in the Amended Statement of Claim. 21. The Respondent thus submitted that the Claimant never properly recruited the Respondent's unionisable employees; that approximately 70.98% of those employees expressly instructed the Respondent not to deduct union dues from their salaries; that the Claimant therefore failed to attain the statutory threshold required for recognition; and that the Respondent cannot lawfully execute a Recognition Agreement under those circumstances. The Respondent further maintained that it cannot lawfully deduct two per cent (2%) of its employees' salaries after receiving their express instructions not to make such deductions. 22. The court was thus urged to dismiss the Claimant’s suit with costs **Determination** 1. I have carefully considered the pleadings, the evidence adduced by the parties, the rival submissions and the authorities cited. In my view, the following issues arise for determination: - 2. Whether the Claimant validly recruited the Respondent's unionisable employees and whether the employees duly authorized the deduction and remittance of union dues. 3. Whether the Claimant attained the simple majority of unionisable employees contemplated under section 54 of the Labour Relations Act so as to entitle it to recognition by the Respondent. 4. Whether the Claimant is entitled to the reliefs sought. *Whether the Claimant validly recruited the Respondent's unionisable employees and whether the employees duly authorized the deduction and remittance of union dues* 1. The Claimant's case is that it recruited eighty-two (82) employees of the Respondent through duly executed check-off forms in April and May 2023 and thereafter forwarded the forms to the Respondent for purposes of deducting and remitting union dues pursuant to section 48 of the Labour Relations Act. It contends that despite repeated demands and conciliation efforts, the Respondent declined to comply with its statutory obligations. 2. The Respondent disputes the validity of the alleged recruitment. It maintains that the documents relied upon by the Claimant are not duly executed check-off forms but merely attendance lists generated during an introductory meeting held on 20th April 2023. According to the Respondent, the employees neither consented to union membership nor authorized deduction of union dues. It further contends that a majority of the employees subsequently expressly instructed it not to deduct union dues from their salaries. 3. I have perused the letter dated 3rd April 2023, appearing at page 17 of the Claimant's bundle, where the Claimant requested the Respondent to facilitate an educational meeting with the non-teaching staff on Friday, 21st April 2023. The stated purpose of the meeting was to educate the employees on the role of the union and matters relating to trade union membership. 4. The record further shows that a meeting between the Claimant and the Respondent's non-teaching staff was indeed held, although the documents on record indicate that it took place on 20th April 2023. The Claimant has produced documents executed on that date bearing the names and signatures of the employees. The parties, however, differ on the legal character and effect of those documents. 5. According to the Claimant, the signed documents are duly executed check-off forms through which the employees voluntarily joined the union and authorized the deduction and remittance of union dues in accordance with section 48 of the Labour Relations Act. The Respondent, on the other hand, maintains that the documents merely constitute attendance records for the educational meeting and did not amount to valid authorizations for deduction of union dues. 6. The question that falls for determination is whether the documents signed by the Respondent's employees constitute valid check-off forms within the meaning of section 48 of the Labour Relations Act or whether, as contended by the Respondent, the documents merely acknowledge attendance at the educational meeting. 7. I have carefully examined the impugned documents produced by the Claimant. The documents bear the names and signatures of the employees and are titled "NAME OF EMPLOYEES WHO HAVE AUTHORISED UNION DUES TO BE DEDUCTED FROM THEIR SALARIES/WAGES". They contain particulars of the employee, including the employee's names and signature. They are therefore not, on their face, attendance registers. The forms are indeed in the format of “Form S” in the Third Schedule to the Labour Relations Act. 8. Section 48(3) of the labour Relations Act refers to Form S which is used for recruitment of union members and a sample is provided in the Third Schedule to the Act. Form S is generally referred to as “Check-off Form”. The section provides: *48(3) An employer in respect of whom the Minister has issued an order under subsection (2) shall commence deducting the trade union dues from an employee’s wages within thirty days of the trade union serving a notice in* ***Form S set out in the Third Schedule*** *signed by the employees in respect of whom the employer is required to make a deduction.* 1. While the educational meeting was convened to sensitize the Respondent's non-teaching staff on trade union membership, there is nothing on the face of the documents to suggest that the employees were merely acknowledging attendance. On the contrary, the documents contain express authorizations signed by the employees permitting the deduction and remittance of union dues. In the absence of evidence demonstrating that the signatures were procured through fraud, misrepresentation, coercion or any other vitiating factor, the Court has no basis for disregarding the documents executed by the employees. 2. Section 48 of the Labour Relations Act obligates an employer to deduct union dues from the wages of an employee who has signed the prescribed check-off form authorizing such deduction and to remit the deductions to the trade union. The obligation imposed by the provision is mandatory once a valid authorization has been executed and served upon the employer. 3. Accordingly, I am satisfied that the documents produced by the Claimant constitute valid check-off forms for purposes of section 48 of the Labour Relations Act. Consequently, upon receipt of the duly executed forms, the Respondent became obligated to deduct and remit union dues in respect of those employees who had executed the authorizations, unless and until such authorizations were lawfully revoked in accordance with the law. *Whether the Claimant attained the simple majority of unionisable employees contemplated under section 54 of the Labour Relations Act so as to entitle it to recognition by the Respondent* 1. Section 54 of the [Labour Relations Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2007/14) provides for recognition as follows- 2. 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. 3. A group of employers, or an employers’ organisation, including an organisation of employers in the public sector, shall recognise a trade union for the purposes of collective bargaining if the trade union represents a simple majority of unionisable employees employed by the group of employers or the employers who are members of the employers’ organisation within a sector. 4. An employer, a group of employers or an employer’s organisation referred to in subsection (2) and a trade union shall conclude a written recognition agreement recording the terms upon which the employer or employers’ organisation recognises a trade union. 5. The Minister may, after consultation with the Board, publish a model recognition agreement. 6. An employer, group of employers or employers’ association may apply to the Board to terminate or revoke a recognition agreement. 7. If there is a dispute as to the right of a trade union to be recognised for the purposes of collective bargaining in accordance with this section or the cancellation of recognition agreement, the trade union may refer the dispute for conciliation in accordance with the provisions of Part VIII. 8. If the dispute referred to in subsection (6) is not settled during conciliation, the trade union may refer the matter to the Industrial Court under a certificate of urgency. 9. When determining a dispute under this section, the Industrial Court shall take into account the sector in which the employer operates and the model recognition agreement published by the Minister. Election of trade union representatives. 10. From the foregoing provision, it is evident that recognition is not automatic. A trade union must demonstrate that it has recruited a simple majority of the employer's unionisable employees. Once that threshold is attained, the employer is under a statutory obligation to recognize the trade union for purposes of collective bargaining and to conclude a Collective Bargaining Agreement. 11. The Claimant's case is that eighty-two (82) of the Respondent’s unionisable employees executed check-off forms authorizing deduction and remittance of union dues, thereby exceeding the statutory threshold for recognition. The Respondent disputes that assertion and maintains that the documents relied upon by the Claimant do not constitute valid check-off forms. 12. Having found that the documents produced by the Claimant are valid check-off forms properly executed by the employees, I am satisfied that the Claimant established that it recruited eighty-two (82) out of the Respondent's ninety-three (93) unionisable employees. That number represents well above the simple majority contemplated under section 54(1) of the Labour Relations Act. 13. The Respondent nevertheless relies on documents allegedly executed by a majority of its employees in April 2026 directing that union dues should not be deducted from their salaries. Those documents were generated nearly three years after the Claimant sought recognition, after a trade dispute had been reported, conciliation undertaken and this suit instituted. 14. While employees are at liberty to resign from a trade union or revoke their authorization for deduction of union dues, such subsequent actions cannot retrospectively negate the fact that, at the time recognition was sought, the Claimant had attained the statutory threshold required under section 54 of the Labour Relations Act. Recognition falls to be determined on the basis of the circumstances obtaining at the material time when the right accrued, which in this case, was on the date the Claimant submitted check-off forms and requested for recognition. 15. The court is further concerned that the Respondent prescribed forms that were issued to employees which expressly provide for deduction or none deduction of union dues. The forms are headed: **REPUBLIC OF KENYA** **EMPLOYMENT AND LABOUR RELATIONS ACT 2007** **SALARY DEDUCTION AUTHORIZATION** 1. These forms are alien to the law and refer to a non-existent Act. there is no Act known as Employment and Labour Relations Act 2007. 2. The only provisions that are relevant for recruitment into union membership are those provided for in section 48(3) of the Labour Relations Act, as already reproduced in paragraph 64 above. By creating its own forms, calling employees to a meeting as submitted by the Respondent and causing the employees to execute the forms, the Respondent was in effect intimidating the employees and coercing them to sign the forms, an act of interference with the right of employees to freely join union membership and participate in union activities. This is a deliberate violation of the constitutional rights of employees to join and participate in trade union activities. 3. The fact that this was done during the pendency of this matter in court means that the Respondent was manufacturing evidence for use in the case, an act that is in clear contempt of court. It is not lost to the court that the majority of the forms are dated April, 2026, with some dated as late as 27th April, 2026, the same date as the Respondent’s Supplementary List of Documents. The last 3 are incredulously dated 5th May, 2026, after the date of the Supplementary List of Documents to which they are attached. The court can only treat such evidence with the contempt that they deserve. 4. Accordingly, I find that the Claimant attained a simple majority in the recruitment of the Respondent's unionisable employees as contemplated under section 54(1) of the Labour Relations Act. The Respondent was therefore under a statutory obligation to recognize the Claimant for purposes of collective bargaining and to conclude a Recognition Agreement. Its refusal to do so was contrary to section 54 of the Labour Relations Act. *Whether the Claimant is entitled to the reliefs sought* 1. Having found that the Claimant validly recruited the Respondent's unionisable employees through duly executed check-off forms and attained the simple majority contemplated under section 54 of the Labour Relations Act, it follows that the Respondent was under a statutory obligation to deduct and remit union dues in accordance with section 48 of the Act and to recognize the Claimant for purposes of collective bargaining. 2. Consequently, I find and hold that the Claimant has proved its case on a balance of probabilities. 3. In the upshot, judgment is entered for the Claimant against the Respondent in the following terms: - 4. A declaration is hereby issued that the Respondent's refusal to deduct and remit union dues upon receipt of duly executed check-off forms and its refusal to recognize the Claimant after it attained the statutory threshold under section 54 of the Labour Relations Act was unlawful. 5. The Respondent shall commence deducting and remitting union dues in respect of all employees who have executed valid check-off forms and who are still in its employment, in accordance with section 48 of the Labour Relations Act. 6. The Respondent shall execute a Recognition Agreement with the Claimant within thirty (30) days from the date of this Judgment. 7. Upon execution of the Recognition Agreement, the parties shall commence negotiations with a view to concluding a Collective Bargaining Agreement in accordance with the provisions of the Labour Relations Act. 8. The Respondent shall pay the Claimant’s costs of this suit which I asses at Kshs. 50,000 as the Claimant was represented by a union official and the costs are therefore not subject to assessment under the Advocates Remuneration Order. 9. Orders accordingly. **DATED, SIGNED AND DELIVERED ON** **THIS 16TH DAY OF JULY, 2026** **MAUREEN ONYANGO** **JUDGE**