https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1589

Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v BOM Bortolimo Boys High School (Cause E044 of 2025) [2026] KEELRC 1589 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEELRC 1589 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nakuru Cause E044 of 2025 AN Mwaure, J June 12, 2026 Between Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers Claimant and BOM Bortolimo Boys High School Respondent Judgment Introduction 1.The Claimant instituted this suit via Memorandum of Claim dated 7th January 2025, seeking the following reliefs that:1.The Honourable court do compel the Respondent to sign the forwarded Recognition Agreement to allow for negotiations of a Collective Bargaining Agreement pursuant to section 54 of the Labour Relations Act 2007.2.The cost of this suit be awarded to the Claimant.3.Any other relief the court deems fit. Claimant’s case 2.The Claimant avers its mandate to represent non‑teaching staff in educational institutions and on 10th February 2022, it recruited 19 out of 27 workers at Bartolimo Boys High School, surpassing the statutory 50+1 threshold under section 54(1) of the Labour Relations Act, 2007. 3.The Claimant avers that the members signed into the union through check‑off system No. 002172, and authority to deduct and remit union dues was forwarded to the Respondent on 18th February 2022 pursuant to Kenya Gazette Supplement No. 135, Legal Notice No. 195 of 1st November 2018, and sections 48 to 50 of the Labour Relations Act. 4.Despite this, the Claimant avers that the Respondent ignored repeated requests to deliberate and sign the recognition agreement, including letters dated 27th May, 14th June, 24th August 2022, and reminders on 10th February and 15th May 2023. 5.After warning that failure to respond would lead to escalation, the Claimant avers that it reported a trade dispute to the Ministry of Labour on 30th August 2024 under section 62(1) of the Labour Relations Act. The Ministry appointed Ms. Rebecca Kosgei as a conciliator on 18th September 2024, who convened a meeting on 7th October 2024 at the County Labour Office, Kabarnet. 6.Following two conciliation sessions, she issued a certificate of unresolved dispute on 7th November 2024 under Section 69 of the Labour Relations Act, allowing the matter to proceed to arbitration. This sequence demonstrates the Claimant’s compliance with statutory procedures and the Respondent’s persistent refusal to engage. Respondent’s statement of response 7.The Respondent opposed the memorandum of claim vide a statement of response dated 11th March 2026. 8.The Respondent, represented by the Attorney General, denies most of the allegations in the Claimant’s Memorandum of Claim, and the Claimant’s mandate to represent non‑teaching staff. 9.The Respondent avers that Bartolimo Boys High School has 34 workers, of whom only 16 are members of the Claimant union, which does not constitute a simple majority necessary for recognition. 10.The Respondent acknowledge that a dispute was reported, the conciliator conducted an audit, and the conciliator failed to resolve the matter. Ultimately, the Respondent pray that the suit be dismissed with costs. 11.Parties were directed to file their respective written submissions. Claimant’s submissions 12.The Claimant submitted that it recruited a simple majority of the Respondent’s workforce, having enrolled 19 out of 34 employees (56%), later maintaining 16 out of 31 employees after retirements, thereby surpassing the statutory threshold under section 54(1) of the Labour Relations Act, 2007. The conciliator’s certificate confirmed the Respondent’s deliberate refusal to sign a Recognition Agreement despite compliance by the union. The Claimant emphasized that section 54(1) to (3) of the Labour Relations Act obligates an employer to recognize a trade union representing a simple majority and to conclude a written recognition agreement. 13.The Claimant relied on Abyssinia Iron & Steel Limited v Kenya Engineering Workers Union [2016] KECA 510 (KLR), where the Court of Appeal held that recognition requires a simple majority of 51%, and KUDHEIHA v BOM Matuu Memorial Girls High School [2025] KEELRC 2181, where the court affirmed that recognition agreements must be signed once the threshold is attained. The Claimant further invoked the Industrial Relations Charter of 1984, which outlines employer obligations and provides a draft recognition agreement to guide negotiations. 14.In conclusion, the Claimant argued that the Respondent’s refusal to sign the agreement amounts to unfair labour practice contrary to Article 41(2) and (5) of the Constitution of Kenya, and prays for orders compelling the Respondent to sign the recognition agreement within 30 days, commence collective bargaining, and pay costs. 15.At the time of writing this judgment, the Respondent did not file their written submissions either by presenting a hard copy or by filing in the CTS. Analysis and determination 16.The court has considered the pleadings together with the submissions on record. The issue for determination is whether the claim had complied with Sections 48 and 54 of the Labour Relations Act and so had the Respondent failed to sign the Recognition Agreement in contravention of the law. 17.Section 48 of the Labour Relations Act defines trade union dues as regular subscriptions paid by members as a condition of union membership. A union may request the Minister, in the prescribed form, to issue an order directing an employer with more than five union members to deduct dues from wages and remit them into specified accounts. Once such an order is issued, the employer must begin deductions within thirty days of receiving a signed Form S notice from employees, and the order takes effect the following month. The Minister may vary, revoke, or suspend the order upon application by the union. Employers cannot deduct dues from employees who have resigned in writing, with such resignation taking effect the following month, and must forward a copy of the resignation notice to the union. In essence, the law establishes a clear framework for deduction, remittance, variation, and cessation of union dues, ensuring both employer compliance and protection of employee rights. 18.Section 54(1) of the Labour Relations Act provides as follows:“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.” 19.In this instant case, the Claimant union recruited 19 out of 27 employees, who duly appended their signatures to check‑off system No. 002172, thereby satisfying the statutory threshold of 50+1 as prescribed under section 54(1) of the Labour Relations Act, 2007. Pursuant thereto, the Claimant forwarded a recognition agreement to the Respondent, who declined to execute the same. Consequently, the Claimant reported a trade dispute to the Ministry of Labour, where a conciliator was appointed and convened meetings in an effort to resolve the matter. The Respondent, however, failed to cooperate, leading to the issuance of a certificate of unresolved dispute. 20.The court is of the view that the Claimant has discharged its burden of proof in accordance with Sections 107, 108 and 109 of the Evidence Act, which stipulate that he who alleges must prove. In the instant case, documentary evidence was adduced showing the check‑off forms authorizing deduction of union dues, together with correspondence requesting execution of the Recognition Agreement. The Respondent’s failure to comply prompted the Claimant to report the dispute to the Ministry of Labour, whereupon a conciliator was appointed. Following unsuccessful conciliation, a certificate of unresolved dispute was duly issued. 21.The court having analysed the Claimant’s case, the Respondent’s response and the Claimant’s submissions comes to the inevitable conclusion that the Claimant has proved a case agaist the Respondent. The Respondent is ordered to sign the Recognition Agreement pursuant to Sections 48 and 54 of the Labour Relations Act 2007. 22.The Claimant will have the costs of the suit.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 12TH DAY OF JUNE, 2026.ANNA NGIBUINI MWAUREJUDGEOrderIn 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 has 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.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE