Kenya Union of Sugar Plantation & Allied Workers v Busia Sugar Industry Ltd (Cause 56 of 2021) [2026] KEELRC 1879 (KLR) (25 June 2026) (Ruling)

Kenya Union of Sugar Plantation & Allied Workers v Busia Sugar Industry Ltd (Cause 56 of 2021) [2026] KEELRC 1879 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1879 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Bungoma Cause 56 of 2021 DN Nderitu, J June 25, 2026 Between Kenya Union of Sugar Plantation & Allied Workers Claimant and Busia Sugar Industry Ltd Respondent Ruling 1.In a judgment dated and delivered on 30th November 2023 the court (Keli J) ordered as follows –a.That the Respondent is ordered to avail the Claimant a list of all employees who have since exited their employment and had signed the FORM S and to commence deduction of check-off dues from the salaries of the employees who have voluntarily signed the union forms acknowledging membership into the Claimant union effective 31st December 2023.b.That the Respondent, his agents(s) or manager(s), and/or any other person(s) serving the interests of the respondent is hereby restrained/stopped from threatening, harassing, victimizing, termination and/or dismissing any of its employees, shop stewards or officials of the Claimant on account of this suit or proceedings. 2.It is the Claimant’s position that the Respondent has not complied with order (b) above, notwithstanding the considerable passage of time. In the intermediary period, many applications have been made including one dated 5th March 2024 for contempt whereby the court (Nderitu J) in a ruling dated 6th February 2025 made the following orders –i.The application by the claimant is dismissed with no orders as to costs.ii.In the interest of justice and in order to bring this matter to its logical conclusion the claimant is ordered to avail in court a list of its members in employment on the respondent within 14 days hereof for the court to issue further orders or directions. Failure to do so the court shall proceed to close this file. 3.In a spirited effort to bring this matter to a logical conclusion, in line with the longstanding judgment alluded to above, the court directed both sides to supply lists of the employees of the Respondent they considered to be genuine and lawful members of the Claimant. 4.On 25th March 2025 the Claimant through its representative, Mr. Jeremiah Akhonya, filed in court a list of its members purportedly working with the Respondent as of that date. The list contained 38 names and it is dated 4th March 2025 and, it is important to note that the named individuals did not sign on the list. 5.In response to the above list, the Respondent filed a replying affidavit sworn by its Counsel, Mr. Ipapu Philip Jackah, sworn on 14th April 2026 with several annexures thereto. 6.According to the Respondent, as deposed in the above affidavit, out of the 38 individuals listed by the Claimant - 23 did not submit Form S (to authorize deduction of union dues), 10 are no longer in employment with the Respondent, eight (8) denounced and withdrew their membership with the Claimant and, another six (6) are not in the payroll of the Respondent. It is deposed that this state of affairs does not enable any deductions and remittances of union dues. 7.It is further deposed that there is only one member eligible for the deduction and remittance of union dues but then the law requires that there be a minimum of five such members for the deductions and remittances to be effected. 8.In reply to the above affidavit, the Claimant filed an affidavit sworn by the representative of the union, Mr. Jeremiah Akhonya, on 27th April 2026, with several annexures thereto. 9.It is deposed that there is no evidence that eight employees have denounced and withdrawn their membership with the Claimant. It is further deposed that contrary to the orders and directions of the court, no explanation has been offered on how the 10 employees left their employment with the Respondent. 10.It is further deposed that 23 of the employees are still in employ of the Respondent signed the Form S as per the list filed in court by the Claimant on 5th March 2025. It is deposed that no reason has been given by the Respondent for its failure to deduct and remit union dues since the judgment was delivered in 2023. 11.This matter has had more than its fair share of judicial time. It is a matter that commenced in ELRC Kisumu in 2021 and now still pending in ELRC Bungoma in 2026 with a judgment delivered in 2023 still in contest and unsettled. For sure, this matter needs to come to a logical conclusion at the very earliest opportunity. 12.Sections 10 & 74 of the Employment Act identify an employer as the custodian of employment records. On 25th March 2025, the Claimant filed in court a list of 38 names of its members who were purportedly in the employ of the Respondent. In the replying affidavit by the Respondent, contents whereof have been summarized above, the Respondent attached the names of the said 38 individuals with comments against each name on the status of their employment and membership with the Claimant. 13.The Respondent posited that as of April 2026 only one member of the Claimant was eligible for deductions and remittance of union dues but this was below the legal threshold. 14.The Claimant filed an affidavit in response to the above insisting that as of February 2024 there were at least 23 of its members working with the Respondent and that the Respondent failed, refused, and or neglected to make deductions and remittance of the union dues. 15.Of course, since the judgment was delivered in 2023, employees have come and gone and the union membership is a revolving door with members coming in and going out. The question then becomes, and this is the gist and the crux of this matter – What is the membership of the Claimant with the employees of the Respondent as of April 2026 or at the time the court is writing this ruling? 16.Honestly, the court finds no answer to the above question from the materials placed before it by both parties following the directions of 18th March 2026. 17.It is an elementary principle of the law that he/she who alleges shall prove. It is the Claimant who alleges that it currently has more than 23 of its members in employ of the Respondent. The easiest and logical way of proving this simple allegation is for the Claimant to avail a list duly signed and dated by the said members, the most recent pay-slips, evidence of membership of the union in whatever form, authorization of deductions and remittances of union dues, etc. That was the right and lawful way for the Claimant to counter the evidence availed by the Respondent to the effect that from its records only one member is eligible for deduction and remittance of union dues. 18.In absence of evidence to the contrary the court can only go by the official record as availed by the Respondent. It boils to the simple question – How does one prove the fact of employment and membership of a union as to demand deduction and remittance of union dues? 19.The court notes that from the list supplied and analyzed by the Respondent, there are four employees who meet the criteria for deduction and remittance of union dues. They are Eric Shivina, Lilian Amenya, Kenneth Bwire, and Moses Okuku. Sadly, the Claimant could not avail even pay-slips for those employees. However, even then they still fall below the legal threshold of at least more than four members. 20.What the court is saying in so many words is that, unless the Claimant is able to come up with convincing evidence of its membership within the employees of the Respondent, the court cannot make an omnibus order that union dues be deducted and remitted without unmasking and naming the specific employees, the members of the union. 21.It is this very omission by the Claimant that led to the court (Keli J) not to make conclusive orders in the judgment and instead ordered the Claimant to supply the list of its duly registered members. That has been the story in this matter from 2023 to this day. 22.For whatever that it is worth, I wish to offer this suggestion to the trade unions and their representatives. Whenever a cause is filed for and on behalf of a grievant(s), let the name(s) be disclosed from the onset. Whenever a trade union lodges a claim for and on behalf of its members, such members must be disclosed and named with evidence of their membership annexed, especially where such membership is likely to be or is actually in contest. It is factually and legally wrong for a trade union to assume that since its membership is supposedly drawn from a certain sector, that all workers in that sector are its members and or that the union automatically gains the legal capacity and legitimacy to represent them in court. It is this assumption that has led to the sad state and conclusion of this matter. 23.For now, the court concludes, finds, and holds that the Claimant has failed to establish its current membership within the workforce of the Respondent and further the official records as availed by the custodian of the same, the Respondent, have not been displaced with credible evidence to the contrary. There is no doubt that the ground has shifted since the delivery of the judgment in 2023 and the court regrets the delay in settlement of the matter for reasons self-evident from the record spanning over six years. 24.As the court concludes this matter and closes the file, it must be stated that the Claimant, upon discovery of any new material evidence, is still free to revive the matter or file fresh causes relating to the current status.VI.Ordersi.For now, this matter is concluded and file closed.ii.Either party is free to move the court if need arises. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 25TH DAY OF JUNE 2026.....................................DAVID NDERITUJUDGE