https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1632

Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers (KUDHEIHA) v Council, the Bungoma National Polytechnic (Cause E010 of 2025) [2026] KEELRC 1632 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1632 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Bungoma Cause E010 of 2025 DN Nderitu, J June 11, 2026 Between Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers (Kudheiha) Claimant and Council, The Bungoma National Polytechnic Respondent Ruling I. Introduction 1.The Claimant filed a Notice of Motion (the application) dated 15th September 2025 seeking for the following orders –a.Spent.b.That the honourable court be pleased to issue temporary orders restraining the respondent from harassing, suspending, terminating, or otherwise preferring disciplinary action of any kind on Dismas Wanandaba and or any other members of the claimant on the basis of union membership /participating in union activities pending inter-partes hearing and determination of this application.c.That the honourable court orders the respondent to stop coercing members to withdraw from the applicant’s union.d.That the honourable court compels the respondent to honour the existing Collective Bargaining agreement and review through negotiation.e.That the costs of this application be awarded to the claimant.f.Any other relief the court deems. fit. 2.The application is expressed to be founded on Section 13 of the Employment and Labour Relations Court Act and the Procedure) Rules, 2016 (now amended). It is based on the grounds on the face of it. 3.The application is supported with an affidavit of Benjamin Khisa Mutoro, the Claimant’s Branch secretary, Bungoma, sworn on 15th September 2025. 4.In opposition to the application, the Respondent filed a replying affidavit sworn by Susan Shikuku, the Respondent’s Human Resources officer, on 30th September 2025. 5.By consent, the court directed that the application be canvassed by way of written submissions. Mr Kamuye for the Claimant filed written submission dated 27th November 2025. Mr Tarus, for the respondent filed written submissions dated 2nd December 2025. II. Evidence 6.In the supporting affidavit, the Claimant averred that employees of the Respondent, then known as Sang’alo Institute of Science and Technology, voluntarily joined the Claimant in recruitments of 30th November 2016 and 1st December 2016, as evidenced by check-off forms and authorization for deduction of union dues. The parties subsequently entered into a Recognition Agreement and negotiated a Collective Bargaining Agreement (CBA) for the period from 1st June 2022 to 31st May 2024 which, pursuant to Clause 21.0 thereof, was to remain in force until lawfully reviewed and replaced through negotiation. 7.It is further deposed that following the appointment of the current Principal, Dr Godfrey S. Murunga, the Respondent engaged in conduct aimed at undermining union operations including, intimidation, coercion, and interference with union membership. It is stated that employees were threatened with disciplinary action or dismissal unless they resigned from the union and that rival union activity was encouraged to weaken the Claimant’s membership. 8.A central complaint concerned disciplinary action initiated against Dismas Wandaba, a long-serving union member, who was issued a show-cause letter for allegedly mobilizing employees into union membership. It is stated that such disciplinary action constituted interference with protected trade union activities and amounted to unfair labour practice. 9.The Claimant further alleged that the Respondent engineered signing member withdrawal forms and compelled employees to sign them under duress but some employees later rejoined the union, thereby demonstrating lack of voluntariness in the withdrawal. It is further stated that the Respondent’s conduct was inconsistent, as it raised complaints against union activities while simultaneously initiating the same complaints to justify disciplinary action. 10.The Claimant contended that the Respondent’s actions created an atmosphere of intimidation likely to result in constructive dismissal of union members and undermined the constitutional right to freedom of association. 11.The Claimant also challenged a letter from the Respondent indicating that employees would be governed by the Human Resource Policy Manual rather than the CBA, arguing that this violated Section 26(2) of the Employment Act which provides that the more favourable terms under a CBA shall prevail over any other employment terms. 12.In conclusion the Claimant sought protection of union members from intimidation and disciplinary action related to union activities, nullification of alleged coerced withdrawal forms, enforcement of the existing CBA, and orders restraining interference with union operations. 13.In the Replying Affidavit, the Respondent’s position is that a Collective Bargaining Agreement (CBA) had been executed between the parties for the period from 1st June 2022 to 31st May 2024 and that the said CBA has since expired. It was contended that negotiations for a successor CBA were ongoing. 14.The Respondent denied allegations of harassment, intimidation, or coercion of employees to withdraw from the Claimant Union. It is stated that in April 2024, 56 - unionisable employees voluntarily resigned from the Claimant and duly notified the employer to stop the deduction of union dues. According to the Respondent, the withdrawals were communicated to the Claimant, the County Labour Officer, and the claimant’s Head Office. 15.It was further deponed that upon receiving instructions from the Claimant Union to commence deduction of union dues in August 2025, a verification exercise revealed that some of the purported members were affiliated to another registered trade union, KETASWU. It is stated that several employees complained that they had been misled into signing union membership forms by one Mr Dismas Wanandaba, who allegedly misrepresented that the forms were required by the Respondent’s Human Resource Department for administrative purposes. Following the complaints, the Respondent issued Mr Wanandaba with a show-cause letter on allegations of misleading employees into joining the Claimant. 16.The Respondent therefore maintained that the application was founded on misrepresentation of facts, that there was no unlawful interference with trade union activities and, that the Claimant had failed to establish a basis for the grant of the orders sought. III. Submissions 20.Mr. Kamuye representing the Claimants submitted that employees of the Respondent, initially under Sang’alo Institute of Science & Technology and later on transitioning to The Bungoma National Polytechnic, voluntarily joined the Claimant on 30th November and 1st December, 2016. The parties executed a Recognition Agreement on 5th November 2010, wherein Clause 2 recognized the Claimant for collective bargaining purposes. 21.It is further submitted that the parties negotiated a Collective Bargaining Agreement (CBA) effective from 10th June 2022 valid for two years and thereafter was to continue in force until a new agreement was concluded in accordance with Clause 21.0 of the CBA. It is contended that although the claimant made efforts to initiate negotiations for review of the CBA, the Respondent failed and or refused to engage meaningfully. 22.It is submitted that the Respondent engaged in conduct aimed at intimidating the employee members and undermining their union membership, particularly through disciplinary action against Dismas Wandaba, who was issued a show-cause letter. It is submitted that the allegations against this individual amounted to unfair labour practices and violated Article 41 of the Constitution of Kenya 2010 and Section 5(2) of the Labour Relations Act prohibiting employer interference with union membership and activities. 23.The Claimant further contended that there were no genuine employee complaints and that the disciplinary process was intended to frustrate union activities. It is also argued that the alleged withdrawal of employees from the union was not voluntary but orchestrated by the Respondent through uniform withdrawal forms. 24.The Claimant submitted that the withdrawal process violated Section 48(6), (7), & (8) of the Labour Relations Act which require that resignation from union membership must originate from the employee and not the employer. The Claimant maintained that the letters of withdrawal were uniform, employer-prepared, and executed under duress, and were therefore invalid in law. It is further pointed out that inconsistencies between the said letters of withdrawal dated April 2025 and subsequent check-off forms in July and August 2025 demonstrated manipulation aimed at destabilizing the union membership. 25.The Claimant relied on correspondences, including its protest letter dated 9th September 2025 and the Respondent’s letter dated 29th April 2025. The lattter indicated that employees would be bound by the Human Resource Policy Manual rather than the CBA. It is submitted this undermined the binding CBA exposing employees to inferior terms of service. 26.The Claimant further relied on international labour standards, specifically ILO Convention No. 98 on the Right to Organize and Collective Bargaining (1949), arguing that the Respondent’s actions violated Articles 1, 2, 3, 4, and 5 of the Convention that protect workers from employer interference and guarantee collective bargaining rights. 27.The Claimant relied on Kenya Long Distance Truck Drivers and Allied Workers Union v Transway (K) Logistics Company; Central Organization of Trade Unions (Interested Party) [2026] KEELRC 160 (KLR, wherein the Court emphasized on the protection of union rights and condemned interference with union membership by the employer. 28.The Claimant’s representative further relied on Kenya Union of Journalists v Standard Group Plc & Central Organization of Trade Unions (Interested Party) [2025] eKLR in arguing that the notice of resignation should originate from an employee and not initiated by an employer. 29.The Respondent’s counsel submitted on one issue – Whether the claimant is entitled to the orders sought. 30.It is submitted that the Claimant failed to meet the threshold for the grant of an interlocutory injunction as set out in Giella v Cassman Brown (1973) EA 358 where the Court held that an applicant must establish a prima facie case with a probability of success, demonstrate irreparable harm, and, where in doubt, consider the balance of convenience. It was further submitted that a prima facie case as one defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR is a case which, on the material presented to the Court or a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposing party as to call for an explanation or rebuttal. 31.Counsel argued that the Claimant failed to demonstrate a prima facie case, as the replying affidavit sufficiently set out the lawful basis and chronology of the intended disciplinary proceedings, that was not rebutted by the claimant. 32.It is further submitted that the Claimant did not demonstrate any breach of rights under the Employment Act, the Constitution of Kenya, or the applicable CBA. It is contended that no irreparable harm was shown, as any alleged injury arising from the disciplinary process may be compensated by way of damages if proved. 33.On the balance of convenience, counsel for the Respondent submitted that it tilts in its favour of not granting the orders sought as the same would restrain the experience of the employer’s lawful managerial and disciplinary authority over its employees. 34.On allegations of coercion and interference with union membership, it is submitted for the Respondent that no evidentiary basis was laid as no affidavit or witness statement was filed from the affected employees. The Respondent maintained that documentary evidence showing employees’ voluntary withdrawal from union membership remained unchallenged, and that submissions cannot take the place of evidence. 35.Finally, on the CBA it is submitted that negotiations for a new CBA are ongoing following the expiry of the previous one. 36.In conclusion, counsel for the Respondent urged the Court to find that the Claimant failed to satisfy the conditions requisite for issuance of injunctive relief as established in Giella v Cassman Brown (supra). The court is urged to dismiss the application with costs. IV. Analysis & Determination 37.The court has carefully read and considered the application, the supporting and replying affidavits, and the written submissions by the parties’ counsel/representative, alongside all the cited authorities. The following issues are for determination pending the hearing and determination of the cause –a.Whether the court should issue a conservatory order to stop any disciplinary action against Dismas Wanandaba.b.Whether the Respondent coerced the members of the Claimant to withdraw their union membership;c.Whether the court should compel the Respondent to continue honouring the existing CBA awaiting negotiation of a new CBA; and,d.Who bears the costs of the application? V. Conservatory Order 38.On whether the court can issue a conservatory order to stop any disciplinary action against Dismas Wanandaba, the court is guided by the principles upon which conservatory orders may be issued as enunciated by the Supreme Court in Peter Gatirau Munya V Dickson Mwenda Kithinji [2014] eKLR. In distinguishing conservatory orders from orders of injunctions, stay, and other interlocutory orders, the apex court stated as follows –‘Conservatory orders bear a more decided public law connotation for these are orders to facilitate ordered functioning within public agencies as well as to uphold the adjudicatory authority of the court, in public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private party issues such as the prospects of irreparable harm occurring during the pendency of the case or high probability of success in the applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.’ 38.The import of the above finding is that conservatory orders are more appropriate and applicable in public interest litigation as opposed to litigation in personal relationships, such as employment, which mandate parties to seek the reliefs, rights, and remedies provided for in the statutes such as Employment Act, Employment and Labour Relations Court Act, Labour Relations Act, and the rules and regulations made under those statutes. 39.For a conservatory order to issue in an ordinary such as employment and labour relations dispute before the court, it must be demonstrated that there is a threat, violation, or breach of the constitutional rights and freedoms of an individual or a group of individuals. The Grievant herein, Dismas Wanandaba, was issued with a show-cause letter dated 5th September 2025. There is no record that he responded to the same before the Court issued a temporary order suspending the disciplinary process on 29th September 2025. 40.While the court exercises original and unlimited jurisdiction in matters of employment and labour relations, the court is deliberated not to descend into the workplace to manage or micromanage the human resources functions of an employer and direct the Respondent on what actions to take or not take against its employees. 41.The Grievant is an employee of the Respondent and, whether or not he is a member of the claimant, he is subject to the codes of conduct of as agreed and laid down with the Respondent. The court takes the view that if the Grievant felt that the disciplinary process against him was unfair and or unlawful, he would be entitled to the remedies available under Section 49 of the Employment Act and the other applicable laws. 42.The disciplinary process was midway when the court issued the interim orders and, the claimant’s apprehension of what the result of the said disciplinary process would be is only speculative. The court takes the view that the Claimant has not made out a prima facie case warranting the granting of a conservatory order as sought whose effect shall be to tie the hands of the Respondent from taking any administrative action against the Grievant. Mind you such disciplinary action may be based on other issues beyond the union activities. 43.The court therefore, finds and holds that the Claimant should not be issued with blank interim orders stopping the Respondent from taking disciplinary action against him, so long as such action is based on lawful basis. The court opines that in the event of any illegality arising from the intended disciplinary action, the court shall still be free to take appropriate legal action. 44.The court prohibits the Respondent from taking any disciplinary action against the Grievant for engaging in lawful activities of the union. VI. Coercion 38.On whether the Claimant has made a case against the Respondent against coercion of its members to withdraw membership, there is there is no evidence of the number of employees currently in the member’s Claimant union yet the respondent in its letter of 29th April 2025 stated that only 22 employees were in the Claimant’s membership. In another letter dated 4th September 2025, the Respondent indicated that 35 employees who were members of the Claimant were already registered with a different union. At the time of the second letter, the Claimant’s membership is said to have been 22 members and not 35. From the pleadings filed Claimant’s membership among the employees cannot be ascertained. The claimant did not supply the court with any changes affecting its membership as claimed by the Respondent and the Respondent did not supply such a list. 39.The court notes that of the alleged members who were allegedly forced to withdraw their membership, none swore an affidavit to that effect in support of assertion. There is no evidence on record that the Respondent coerced the Claimant’s members to withdrawing their membership. Joining and withdrawing membership in a union is voluntary and, there is no evidence that the Respondent forced any of the alleged members of the Claimant to withdraw their membership. The court shall therefore not issue a blanket order in the absence of tangible evidence of coercion. VII. CBA 38.The Claimant urges the court to compel the Respondent to honour the existing CBA and review the same through negotiations and collective bargaining. 39.In response the Respondent availed a letter dated 21st July 2025 from the Salaries & Remuneration Commission(SRC) as proof that the existing CBA was forwarded for review by SRC to ensure the intended CBA is fiscally capable of being implemented. 40.There is no evidence on record from the Respondent on the response from the SRC on the proposed CBA. Under Section 59(5) of the Labour Relations Act, once registered, a CBA is binding and, enforceable, and failure to implement any part of the CBA gives the wronged party a remedy for an order of specific performance. The CBA in Clause 21.0 stated that the CBA shall be in place until a new CBA is negotiated, agreed, executed, and registered. 41.Section 57 (2) of the Labour Relations Act provides that – (2) For the purpose of conducting negotiations under subsection (1), an employer shall disclose to a trade union all relevant information that will allow the trade union to effectively negotiate on behalf of employees. 42.In the spirit of good and harmonious labour relations, the Respondent is obligated to inform the Claimant of the status on CBA, especially communication from SRC or other relevant information, to foster negotiations and settlement. 43.The court finds and holds that the terms of the CBA for the period 1st June 2022 to 31st May 2024 are binding on the Respondent until a new CBA is negotiated and registered. No evidence was adduced to prove that the Respondent has failed to honour the terms of the CBA. The Respondent has demonstrated that negotiations are ongoing and it is awaiting the recommendations from the SRC. 44.In the circumstances, the court finds and holds that the Respondent has neither refused to honour the existing CBA nor failed to negotiate a new CBA. VIII. Orders 38.The court makes the following orders –a.The interim order issued on 29th September 2025, stopping the Respondent from proceeding with any disciplinary action against Dismas Wanandaba, based on lawful union activities shall hold and subsist pending the hearing and determination of this cause or further orders of the court.b.However, (a) above is not a blank order barring the Respondent from taking disciplinary action against the Grievant based on the other lawful basis.c.The Parties shall engage in negotiations on completing a new CBA within 30 days from the date hereof.d.Costs shall be in the cause. DELIVERED VIRTUALLY, DATED, AND SIGNED AT BUNGOMA THIS 11TH DAY OF JUNE 2026.....................................DAVID NDERITUJUDGEELRC BUNGOMA