https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1427

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** *(Before Hon. Lady Justice Monica Mbarũ)* **CAUSE NO. E032 OF 2025** **KUDHEIHA WORKERS CLAIMANT** *VERSUS* **BRUNO GONZALES RESPONDENT** **JUDGMENT** The claimant is a registered trade union. The respondent is a resident of Kwale County. The claimant filed the claim for its member and grievant, Idris Siamini. The respondent employed the grievant as a gardener at his Kombo House Diani on 2 January 2019. He was paid a wage of Ksh. 9,000 per month which was later increased to Ksh. 10,000 per month. The respondent failed to pay statutory dues, the minimum wage, or compensation during work during public holidays. The claim is that the grievant resigned from his employment and issued notice on 12 September 2023 with the last day being 12 October 2023. The grievant asked the respondent to pay his terminal dues together with wage arrears. Through letter dated 18 September 2023, the respondent acknowledged receipt of the notice and declined the offer to serve the notice period. The respondent also admitted owing the grievant the following terminal dues: 1. One month’s notice pay. 2. Compensation for accrued leave days. 3. Underpayment of wages. 4. Service gratuity for years worked. 5. Compensation for public holidays. 6. Certificate of service. The claimant made the tabulations for the grievant, but the respondent refused to pay. The claimant is seeking the payment of the grievant’s terminal dues as follows: 1. None pay Ksh. 10,000. 2. 21 accrued leave days for 4 years Ksh. 63,512. 3. Service pay for 4 years Ksh. 32,257. 4. 11 public holidays worked for 4 years each Ksh. 60,480. 5. Underpayment of wages. 6. Costs of the suit. The grievant testified in support of his case that upon employment by the respondent as a gardener, he was placed at the Kombe home in Diani and worked diligently until he opted to resign from his employment. He served notice dated 12 September 2023. The respondent accepted but refused to pay his terminal dues. He reported the matter to the claimant as a member and despite being served, the respondent has refused to make payment. The claimant was cross-examined and testified that he was supervised by Kiema, the farm manager. Kiema had the authority to hire employees, but the respondent retained ownership as the principal employer. Kiema is not sued as a respondent since he was the manager. He joined the claimant and retained his membership during employment with the respondent. In response, the respondent denied the claims and that in 2020 the grievant was engaged as a general labourer at Kombe House in Diani. There is no recognition agreement with the claimant and, hence, no collective agreement is in place. The grievant is therefore not protected under the claimant’s membership. The respondent has never deducted union dues from the grievant for remittance to the claimant. The grievant’s work attendance was intermittent, and the grievant was paid over and above the minimum wage. The grievant had a history of failing to report to work without cause. He would reappear at his convenience and would therefore not be paid for days absent. The claims made are not justified, and hence the notice pay, leave pay, service pay, public holidays, and alleged underpayments do not arise. The claim should be dismissed with costs. In evidence, the respondent called Margaret Mutindi Kiema, who testified that she works at Kombe House for the respondent as the manager. The claimant was sourced as a general labourer and did not work continuously as alleged. He tendered his resignation, and the claims made are not justified. At the close of the hearing, the parties filed written submissions, which were analysed, and the issue for determination is whether the remedies sought should be awarded. **Determination** The claim is that the grievant was an employee of the respondent and he resigned from his employment but the respondent has refused to pay his terminal dues. The respondent has contested the claim by the claimant on the basis that there is no Recognition Agreement or Collective Agreement (CBA) for it to file suit for the grievant. A Recognition Agreement is regulated under section 54 of the Labour Relations Act. The sole purpose of a Recognition Agreement is to secure a trade union’s right to negotiate a CBA with the employer. This does not stop a trade union from recruiting union members in the service of an employer such as the respondent. see [**Kenya County Government Workers Union v Nakuru County Government & another [2018] KEELRC 36 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/36/eng%402018-06-14) and [**Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA) v Board of Management, Wambasa Girls Secondary School [2025] KEELRC 3292 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/3292/eng%402025-11-24)**.** The courts have held that the principal purpose of a Recognition Agreement is to regulate relations between employees and employers, including any employer’s organisation. It is further meant to be the start of the CBA negotiations. In **Lochab Brothers Ltd v Transport Workers Union [2024] KECA 965 (KLR)** the Court held that: *The purpose or consequence of signing a recognition agreement is to give the union a right to negotiate a collective bargaining agreement while deduction and remittance of union dues by an employer is found on two things; first is a directive Order issued by the minister and second is service of Form S which contains the signatures of employees authorising deductions of union dues from their salaries.* In this case, the grievant had the right to join the trade union of his choice protected under Article 36 and 41 of the Constitution. the claimant thus has right to represent its member in court in these proceedings under the provisions of the Labour Relations Act. The claimant under section 52 of the Labour Relations Act has a right to pay to his trade union directly. Such membership comes with benefits negotiated under CBA. In this regard, the claimant had not secured a Recognition Agreement and thus, there is no CBA. The grievant's right to resign from his employment is not contested. He claimed various terminal dues. The respondent contests that the grievant had intermittent work attendance. There is no record filed. Under section 10(6) of the Employment Act (the Act), the employer, such as the respondent, has the legal duty to file work records. Where employment is admitted, the respondent did not produce the work records. Under section 37 of the Act, the grievant was a protected employee while in the service of the respondent in the absence of any work records. Each claim by the claimant for the grievant will be assessed under the work protections pursuant to section 37 of the Act. Regarding notice pay, upon the respondent's notice to resign and to serve the notice period, the respondent opted for the grievant to leave. Notice pay on a monthly wage is due at Ksh. 10,000. The issue is an underpayment. The grievant was based in Diani in Kwale County. Under the Minimum Wage, the basic pay in September 2023 is Ksh. 8,109.90. There is no indication that the grievant was accommodated by the respondent. The house allowance at 15% is Ksh. 1,216.35 and gross wage Ksh. 9,325.50. There was no underpayment and the wage paid was over and above the allowed minimum. Regarding the claim for service pay, there are no work records on the respondent deducting or remitting statutory dues. Under section 35(5) and (6) of the Act, service pay is due for 15 days for each full year worked. From the claimant’s evidence, the grievant commenced his employment with the respondent in January 2019 to September 2023, a period of 4 full years. Service pay is due at Ksh. 5,000 x 4 = Ksh. 20,000. Regarding the claim for leave pay for 4 years, again, without work records, the claimant is entitled to his annual leave. under section 28 of the act, such can only accrue for 18 months all at 33 days. Total leave pay dues are Ksh. 11,000. On the claim for work during public holidays, the claimant is seeking 11 days for 4 years. However, these are special days gazetted by the Minister and cannot be renormalized. On costs, the claim being successful, the claimant is entitled to costs. such shall be awarded at Ksh. 20,000 all-inclusive. **Accordingly, judgment is entered for the claimant against the respondent in the following terms:** 1. **Notice pay ksh. 10,000.** 2. **Leve pay Ksh. 11,000.** 3. **Service pay Ksh. 20,000.** 4. **Costs of the suit Ksh. 20,000.** 5. **The dues above shall be paid within 30 days, after which the same shall accrue interest at court rates.** **Delivered in open Court on this 28th day of May 2026** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistants: Catherine, Kemboi and Omar ……………………………………………… and …………………………………..…………..