https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1709

Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers (KUDHEIHA) v Board of Management Okame Technical and Vocational College (Cause E023 of 2025) [2026] KEELRC 1709 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1709 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kakamega Cause E023 of 2025 DN Nderitu, J June 18, 2026 Between Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers (KUDHEIHA) Claimant and The Board of Management Okame Technical and Vocational College Respondent Judgment I. Introduction 1.The Claimant, a duly registered trade union, commenced this cause on behalf of its members (the Grievants) by way of a statement of claim dated 13th May 2025 seeking for various reliefs –1.That the honourable court compels the respondent to commence Collective Bargaining Agreement Negotiation with the claimant within fourteen days from when the judgment is given.2.That the respondents by themselves, their board and/or responsible officers commence, conclude and sign a Collective Bargaining Agreement without further delay.3.That the respondent should be deterred from victimizing, intimidating and harassing employees who are members of the claimant’s union.4.That the respondent to bear the cost for unwarranted delays caused and the amount used in trying to solve the matter before being filed in court.5.Any other remedy that the honourable court may deem fit and just. 2.The statement of claim was accompanied with a verifying affidavit sworn by Daniel Otieno Osore, an industrial officer of the Claimant, on 26th May 2025, a list and copies of the listed documents. 3.Upon service, the Respondent filed a response through the Attorney General putting the Claimant to strict proof of all the allegations and assertions made against it. It is contended that the Claimant has not met the threshold of engaging in collective bargaining under Section 54(1) of the Labour Relations Act. 4.The Respondent also filed a witness statement by Duncan Ikileng, the human resource manager of the Respondent, dated 16th September 2025. It also filed a list of documents dated 16th September 2025 and photocopies of the listed documents. 5.In reply to the above, the Claimant contended that having signed a recognition agreement with the Respondent the next legal step by the parties was to engage in collective bargaining. It is pleaded that the recognition agreement is of itself prima facie evidence that the Claimant met the legal threshold for engaging the Respondent in collective bargaining. 6.By consent from both sides, the court on 28th October 2025 directed that the matter be canvassed by way of written submissions. Miss Muthini, the Busia Branch Secretary and an Industrial officer of the Respondent, filed written submissions dated 14th November 2025 while Mr Tarus, a Principal State Counsel with the Attorney General, filed written submissions dated 25th November 2025. II. The Claimant’s Case 7.The Claimant’s case is expressed in the statement of claim, the documentary evidence tendered, and the written submissions by the union representative. 8.In the statement of claim, it is pleaded that the Claimant is a duly registered trade union and the Respondent is introduced as a registered public technical and vocational training college situate in Teso South Sub-County of Busia County. 9.It is pleaded that from about 2021, the Claimant engaged the non-teaching staff of the Respondent with the consent of the Respondent, culminating in its recruitment of 18 employees into its membership accounting for 90% of the unionisable employees. It is pleaded that thereafter the Claimant submitted check-off forms and letters authorizing the deduction and remittance of union dues from the said members. 10.It is pleaded that the Respondent implemented the check-off deduction and remittance of union dues but the Respondent allegedly failed, refused, and or neglected to sign a recognition agreement and only did so after being compelled through Kakamega ELRC Cause No. E008 of 2023. The recognition agreement was signed on 29th June 2023. 11.It is pleaded that after the execution of the recognition agreement the Respondent refused to engage with a view of collective bargaining, notwithstanding numerous requests and demands from the Claimant that the Respondent follows the law on the issue. 12.Subsequently, the Claimant referred the matter to the Ministry of Labour on 2nd October 2024 for conciliation. The labour officer at Busia was appointed the conciliator but in a meeting held on 17th March 2024 the Respondent expressed that it was not willing to engage in collective bargaining with the Claimant. 13.It is on the basis of the foregoing that the Claimant prayed as per the reliefs set out above. III. The Respondents’ Case 14.In response to the claim, the Respondent stated that the Claimant failed to meet the threshold for engaging in collective bargaining as its membership with the Respondent’s employees subsequently fell below the 50% plus one required under Section 54(1) of the Labour Relations Act. 15.In reply to the above, the Claimant pleaded that the Respondent had intimidated, coerced, harassed, and victimized some of its employees to withdrawing their union membership in contravention of Article 41 of the Constitution. However, the Claimant denied that the membership had dropped below the threshold. IV. The Hearing 16.As stated above, the matter was heard and canvassed by way of written submissions under Rule 59 of the Employment and Labour Relations Court Rules, 2024. V. Written Submissions 17.Miss Muthini for the Claimant identified the following issues for determination by the court –1.Whether the Respondent’s refusal to negotiate a Collective Bargaining Agreement (CBA) constitutes a violation of the law and the Recognition Agreement.2.Whether the Respondent’s failure to deduct and remit union dues amounts to unfair labour practice.3.Whether the Claimant is entitled to costs of this suit. 18.On the first issue, it is submitted that once the recognition agreement was duly signed, the Respondent was obligated to engage in collection bargaining and reach an agreement (CBA) with the Claimant in accord with Section 54 of the Labour Relations Act. 19.It is further submitted that the Respondent had deliberately refused to obey Section 48(3) of the Labour Relations Act for failing to deduct and remit union dues based on the recognition agreement between the parties. It is submitted that the Respondent has subjected the members of the Claimant to unfair labour practices under Article 41 of the Constitution and Section 5 of the Labour Relations Act. 20.It is submitted that the Respondent should engage in collective bargaining with the Claimant as per the applicable law. 21.The court is urged to allow the claim as prayed with costs. 22.Mr Tarus for the Respondent submitted that from the witness statement of Duncan Ikileng and the documents filed, the Respondent has a total of 17 employees out of which only three are members of the Claimant. 23.It is submitted that the Claimant failed to challenge the above evidence availed by the Respondent from its official records. Counsel cited KUDHEIHA V Board of Management Mwariki Secondary School 2022 KEELRC 1786 (KLR) wherein the court held that it is incumbent upon a union to prove that it has met the threshold under Section 54(1) of the Labour Relations Act. Counsel further submitted that the same position was emphasized in Kenya Petroleum Workers Union V Nas Oil Kenya Ltd (2025) KEELRC 107 (KLR). 24.It is emphatically submitted that the Claimant lacks the requisite legal capacity and threshold to engage the Respondent in collective bargaining and any forced agreement shall be illegal, null, and void. 25.For all the above, the Respondent urged the court to dismiss the claim with costs. VI. Issues for Determination 26.The court has carefully and dutifully gone through the statement of claim, the attached documentary evidence and, the filed written submissions. It was incumbent upon the Claimant to prove the cause on a balance of probabilities. 27.The evidence placed before the court confirms that a recognition agreement was executed by and between the parties on 29th June 2023. Subsequently, the Respondent failed and or refused to engage forcing the Claimant to refer the trade dispute to the Minister as pleaded in the statement of claim. 28.The Respondent failed and or refused to appear before the appointed Conciliator, the Labour Officer Busia. However, the Claimant did not avail in court a certificate of unresolved dispute by the conciliator in accord with Section 69(a) of the Labour Relations Act. 29.The Claimant did not file a witness statement, at least there is none in the file, but there is an affidavit verifying the contents of the statement of claim by Daniel Otieno Osore, as stated above. In fact, in the list of the witnesses to be called the Claimant simply indicated – “Any person with the leave of the court”. No leave of the court was ever sought to either file a statement or an affidavit in support of the claim. 30.On the other hand, the Respondent’s case is that while a recognition agreement was signed by and between the parties as pleaded by the Claimant, the membership of the union within its workforce fell below the threshold of 50% plus one. The Respondent availed letters of withdrawal of membership from eight of its employees, a letter of summary of dismissal of one employee, and a letter of exit of service of one employee. 31.It is the Respondent’s position that out of its workforce of 17 employees only three are still in the union membership. 32.The Claimant neither filed a rejoinder to the above, nor filed witness statements or affidavits from the employees purported to still be in membership of the union amongst the employees of the Respondent. 33.Be that as it may, the following issues commend themselves to the court for determination –a.Did the Claimant prove its case on a balance of probabilities?b.Is the Claimant entitled to the reliefs sought?c.Who should bear the costs of the cause? Vii. Merits of the Cause 34.As it is stated again and again in the foregoing paragraphs of this judgment, it was upon the Claimant to prove its case. The Claimant had to prove that indeed it has membership of the Respondent’s employees meeting the threshold of 50% plus one. As stated above, the evidence by the Respondent that members of the union had voluntarily withdrawn their membership was neither disputed nor rebutted by the Claimant. No witness statement(s) or affidavits were filed in court to establish and confirm membership of the alleged numbers of employees with the union. 35.The above situation is what the Respondent alluded to as the reason for its failure to engage with the Claimant towards a collective bargaining agreement (CBA). It is also cited as the reason for its failure to deduct and remit union dues. 36.The court finds and holds that the Claimant did not establish and prove the current names and numbers of its membership within the workforce of the Respondent. That is the gist of the cause and the court agrees with the decisions cited by the counsel for the Respondent on this issue – KUDHEIHA V BOM Mwariki Secondary School and Kenya Petroleum Oil Workers Union V Nas Oil Kenya Ltd (both supra). VIII. Reliefs 35.For all the foregoing reasons, the court finds and holds that the Claimant failed to prove the basic ingredient of its claim – that it still holds the threshold membership with the employees of the Respondent – and hence the issue of the reliefs and remedies does not arise. 36.No evidence was availed to prove that the withdrawal of the concerned members from the union was as a result of harassment, intimidation, coercion, threats, discrimination, or any other unorthodox or illegal means or methods applied by the Respondents and or its agents. As noted elsewhere in this judgment, this could only have been proved by way of statements or affidavits from the affected employees detailing their reasons for withdrawal from the union. That evidence was not availed to the court. VII. Orders 37.Flowing from all the foregoing, the court issues the following orders –a.This cause is hereby dismissed in its entirety.b.No order on costs. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 18TH DAY OF JUNE 2026.……………………DAVID NDERITUJUDGE