https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1761

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **CAUSE NO. E315 OF 2025** **KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS AND HOSPITALS WORKERS………….….CLAIMANT** **VERSUS** **ROYAL MARA SAFARI LODGE…………………………....RESPONDENT** **RULING** **Background** 1. The Claimant has instituted the instant action against the Respondent to claim for various reliefs as set out in the Statement of Claim dated 11th April 2025. It contends that it recruited twenty three (23) members from the Respondent’s workforce who acknowledged their membership with it (the Claimant) by signing the requisite check-off forms. 2. The Claimant contends that the twenty three (23) employees comprised the Respondent’s entire unionisable workforce. As such, it asserts that it has satisfied the statutory threshold for recognition by the Respondent. 3. The Claimant avers that it wrote to the Respondent on 19th July 2024 forwarding to it (the Respondent) the signed check-off forms. It contends that the forms required the Respondent to deduct trade union dues from the salaries of the twenty (23) employees and remit the amount to it (the Claimant). 4. The Claimant avers that despite having attained the statutory threshold for recognition, the Respondent refused to sign a Recognition Agreement between the parties. As a result, the Claimant avers that it was forced to report a trade dispute to the Ministry of Labour and Social Protection. 5. The Claimant avers that the Ministry of Labour and Social Protection appointed a Conciliator to mediate the aforesaid trade dispute. However, it (the Claimant) asserts that the Respondent refused to attend the conciliation meetings resulting in the Conciliator issuing a Certificate of Unresolved Dispute. 6. The Claimant asserts that following these developments, it approached the court for resolution of the dispute. As such, it seeks the various reliefs which are set out in the Statement of Claim. 7. Subsequently, the Claimant filed the application dated 10th November 2025 seeking the following interim reliefs:- 8. Spent. 9. Spent. 10. That the court orders the Respondent to deduct and remit to it (the Claimant) trade union dues from employees who have taken up membership with it (the Claimant). 11. That the court issues an order to reinstate all of its (the Claimant’s) members whose employment has been affected by virtue of their union membership. 12. That the court issues an order to protect its (the Claimant’s) members from harassment, intimidation, victimization, redundancy or termination of their employment by the Respondent and or its servants and or agents on account of the affected employees’ trade union membership. 13. That the court orders the Respondent to allow it (the Claimant) access to its members at the workplace for purposes of representation and engagement as sanctioned by *the Labour Relations Act*. 14. That the court orders the Respondent not to alter the Claimant’s members contracts of service without compliance with sections 10 and 40 of *the Employment Act* and without consulting the Claimant. 15. The application is supported by the affidavit which is dated 11th November 2025. The affiant to the affidavit avers that the Respondent has been harassing employees who have taken up membership with the Claimant in contravention of the employees’ constitutional rights to participate in trade union activities. 16. The affiant further asserts that the Claimant forwarded to the Respondent check-off forms showing the employees who had taken up trade union membership with it (the Claimant). However, he avers that the Respondent declined to act on the aforesaid forms. 17. The affiant further alleges that the Respondent has denied the Claimant’s officials access to its (the Respondent’s) premises in order to engage with the Claimant’s members. He contends that this has infringed on the Claimant’s members’ right to be represented by it. 18. The affiant further asserts that the Respondent has declared some of the Claimant’s members redundant without following the law. Further, he contends that the Respondent has irregularly converted some of the Claimant’s members’ contracts of service from indefinite to fixed term. 19. The affiant asserts that although the parties had agreed to sign a Recognition Agreement, the Respondent backtracked on the matter. He avers that the Respondent declined to sign the agreement on the ground that some employees had resigned from the Claimant, a matter which the Claimant contests. 20. The Respondent has opposed the application. It has filed a replying affidavit dated 9th December 2025 to anchor its objection to the motion. 21. The Respondent denies that it has been harassing or intimidating any of its employees on account of their decision to join the Claimant. It contends that it has maintained a cordial and professional relationship with the affected employees. 22. The Respondent asserts that some of the employees who had taken up membership with the Claimant resigned from the aforesaid membership. It contends that the resignations were voluntary. 23. The Respondent denies that it has been converting the contracts of the affected employees from indefinite to short-term in an effort to intimidate them. On the contrary, it asserts that the contracts which the Claimant alludes to are for an indefinite term. 24. The Respondent asserts that the orders which the Claimant seeks in the application presuppose that the parties already have a subsisting Recognition Agreement which is not true. It contends that although the parties engaged in discussions regarding recognition of the Claimant, no agreement was arrived at. **Analysis** 1. Article 41 of *the Constitution* guarantees the right to fair labour practices. This right encompasses various other rights which include: the right of an employee to join or not to join a trade union; and the right of an employee to participate in activities of a trade union. 2. The aforesaid rights are reiterated in section 4 of *the Labour Relations Act*. Further, section 5 of the Act prohibits victimization of employees or prospective employees on account of their trade union membership. 3. From the foregoing, it requires no gainsaying that employers have a duty to facilitate the enjoyment of these rights by employees without undue hindrance. This obligation applies to the Respondent in the instant dispute. 4. The annexures to the application under consideration demonstrate that the Claimant recruited twenty three (23) employees of the Respondent as its (the Claimant’s) members. As a matter of fact, whilst the Claimant has stated this fact on oath, the Respondent has not denied it in the affidavit it filed in opposition to the application. As such, it is apparent from the preliminary material before the court that the Claimant recruited twenty three (23) of the Respondent’s employees. 5. The Claimant asserts that upon recruiting the twenty three (23) individuals, it attained the simple majority threshold for recognition by the Respondent. Whilst the Respondent does not deny this fact, it asserts that the simple majority was subsequently lost through resignation of some of the employees from the Claimant’s membership. However, the Claimant asserts that there has been no valid resignation by any of its members. 6. Deduction and remittance of trade union dues is not pegged on the presence of a Recognition Agreement between and employer and a trade union (see ***Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) v Board of Management, Wambasa Girls Secondary School [2025] KEELRC 3292 (KLR)***). It only requires the authorization of the Cabinet Secretary of the Ministry of Labour and Social Protection. 7. This is self-evident from section 48 (2) of *the Labour Relations Act* which states as follows:- *‘’A trade union may, in the prescribed form, request the Cabinet Secretary to issue an order directing an employer of more than five employees belonging to the union to deduct trade union dues from the wages of its members;..’’* 1. Once the aforesaid threshold is met, a trade union is entitled to require an employer to deduct and remit trade union dues from the affected employees. This is irrespective of whether the employer and trade union have executed a Recognition Agreement between them. 2. In the instant case, it is apparent that the Respondent has more than five (5) employees. It is also apparent that the Claimant recruited twenty three (23) of the Respondent’s employees. It is also apparent that the Claimant forwarded to the Respondent the notice of authorization to deduct and remit trade union dues from the twenty (23) employees which refers to the Ministerial Order which permits the payments. As such, the court is satisfied that the Claimant is entitled to have the Respondent deduct and remit the trade union dues from the twenty (23) employees who are members of the Claimant. 3. Although the Respondent alleges that some of the employees resigned from the Claimant’s membership, no cogent evidence has been presented to support this assertion. Under section 48 (6), (7) & (8) of *the Labour Relations Act*, the Respondent can only cease to effect the reductions and remittances from the employees who have joined the Claimant if the employees tender a written notice of resignation from the Claimant which notice must be served on the Claimant. No evidence of any such notices which have been served on the Claimant in line with this provision were tendered to court. 4. Absent this evidence, the employees are deemed to still be members of the Claimant. As such, the Respondent is obligated to deduct and remit to the Claimant trade union dues from the said employees. The employees have the option of invoking the resignation procedure under the Act if they wish to terminate their union membership and the attendant obligation to remit the trade union dues. 5. The preliminary evidence before court suggests that the Claimant has substantial membership from the Respondent’s workforce. As such, it (the Claimant) is entitled to access the Respondent’s premises for purposes of conducting lawful trade union activities which include representing its members as long as this is not unduly disruptive of the Respondent’s work. As such, the Respondent has a duty to facilitate enjoyment of this right. At the same time, the Respondent is under obligation not to penalize its employees for engaging in trade union activities. 6. The record shows that the parties have had a protracted back and forth regarding the signing of a Recognition Agreement between them. As a matter of fact, the email correspondence between them suggest that the Respondent committed to sign the agreement before 22nd September 2025 only to backtrack on the matter. This paints a picture of a reluctant party in the process. 7. The unexplained delay by the Respondent in according the Claimant recognition may legitimately stir in the affected employees fears that the Respondent has general abhorrence for their enjoyment of the right to belong to and participate in trade union activities. This has the potential of occasioning fear of their victimization for participation in such activities. **Determination** 1. The upshot is that the court finds that the Claimant’s application dated 10th November 2025 for interim reliefs is merited and issues the following orders pending the hearing and determination of the suit:- 2. The Respondent is hereby ordered to deduct and remit to the Claimant trade union dues from employees who have taken up membership with the Claimant. 3. The Respondent is ordered not to harass, intimidate, victimize, or declare redundant or terminate the employment of the Claimant’s members on account of their trade union membership. 4. The Respondent is ordered to allow the Claimant access to its members at the workplace for purposes of representation and engagement as sanctioned under *the Labour Relations Act* as long as this does not occasion undue disruption to the Respondent’s work. 5. The costs of the application to abide the outcome of the suit. **Dated, signed and delivered on the 26th day of June, 2026** **B. O. M. MANANI** **JUDGE** In the presence of: …………….for the Claimant …………….for the Respondent **ORDER** **In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.** **B. O. M MANANI**