Odero & another v Kenya Aviation Workers Unions (Employment and Labour Relations Petition E042 of 2026) [2026] KEELRC 1405 (KLR) (15 May 2026) (Ruling)

Odero & another v Kenya Aviation Workers Unions (Employment and Labour Relations Petition E042 of 2026) [2026] KEELRC 1405 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1405 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Petition E042 of 2026 JW Keli, J May 15, 2026 IN THE MATTER OF THE ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS OF INDIVIDUALS UNDER THE BILL OF RIGHTS OF THE CONSTITUTION OF KENYA. IN THE MATTER OF ARTICLES 2(1)(2)(3)(4)(5)(6), 3(1), 10, 20, 21, 22, 23, 28, 35, 36, 40, 41, 46, 47, 48, 159, 165(3)(b), 258, AND 259 OF THE CONSTITUTION OF KENYA. IN THE MATTER OF RULES 3, 4, 10, 11, 20, 21 AND 22 OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE & PROCEDURE RULES, 2013, ALIAS MUTUNGA RULES. IN THE MATTER OF SECTIONS 4 & 5 OF THE ACCESS TO INFORMATION ACT, CAP 7M, LAWS OF KENYA. IN THE MATTER OF SECTIONS 2, 3, 4, 5, 6, 7, 10, 11 & 12 OF THE FAIR ADMINISTRATIVE ACTION ACT, CAP 7L, LAWS OF KENYA.IN THE MATTER OF IN THE MATTER OF THE UNCONSTITUTIONAL UNLAWFUL AND UNFAIR REFUSAL TO GRANT ACCESS TO INFORMATION. Between Paulette Odero 1st Petitioner Ayan Adan Osman 2nd Petitioner and Kenya Aviation Workers Unions Respondent Ruling 1.Membership to trade unions is voluntary and a fair labour practice under Article 41 of the Kenya Constitution. The petitioners are cabin crew members and allege that sometimes in 2010 the respondent registered Kenya Airport Women’s Union (KAWU) and involuntarily made all airport workers except pilots, members of the union. They have now come to court vide the petition dated 2nd February 2026 seeking for the following orders:i.A declaration that the Petitioners' right to access information were violated by the Respondent.ii.A declaration that the Respondent to furnish the petitioners with the requisite information within 14 days.iii.A declaration that the Petitioners' fair labour practices rights were violated by the Respondent.iv.An order directing the Respondent to cease any further deductions from the Petitioner's salary.v.Any other relief that this Honourable Court may deem just and expedient in the circumstances.vi.General and exemplary damages for breach of the petitioners' rights.vii.Costs of the suit and interest thereon at court rates. 2.They further sought interim conservatory orders under Notice of Motion application dated 2nd February 2026 seeking for the following orders:a.spentb.Pending the hearing and determination of this application and the petition, this honourable court be pleased to issue conservatory orders temporarily barring the respondent, their agents or anyone acting at their behest from deducting the petitioners' salary as part of union dues.c.Upon hearing and determination of this application and the petition, this honourable court be pleased to issue conservatory orders permanently barring the respondent, their agents or anyone acting at their behest from deducting the petitioners' salary as part of union dues.d.Pending the hearing and determination of this application and the petition, this honourable court be pleased to issue orders directing the Respondent to provide reasonable access to the information requested by the petitioners.e.Upon hearing and determination of this application and the main suit, this honourable court orders the respondent to grant the petitioners or their representatives with copies of the information requested within 14 days of determination.f.Costs of the application. Grounds of the application 3.The petitioners are employees of Kenya Airways the national carrier and the country's largest airline. 4.The petitioners, together with other employees of the airline, save for pilots, were forced into Kenya Airport Workers Union (KAWU) which continues to make deductions from their payslips to date. 5.KAWU is an umbrella body for all airport staff regardless of the nature of their work except pilots. 6.Airport work is diverse and with different needs that it is not possible to effectively represent one cadre through an omnibus union like KAWU. 7.Cognizant of the inefficiencies of KAWU, the petitioners sought to register a new union that would cater specifically to cabin crew members who felt that they were not being adequately represented under KAWU. 8.Previous attempts by cabin crew members to register a trade union tailor-made for them were met with resistance, threats, and intimidation from both the employers and KAWU. 9.KAWU has failed to advance the interests of cabin crew members, more specifically, KAWU supported the abolishment of layover allowance to the detriment of the petitioners and other cabin crew members. 10.The petitioners wrote to the respondent seeking information about the operations of the Respondent in order to make an informed choice whether or not they want to continue being its members or proceed with the registration of a splinter union. 11.The respondent has neglected and/or declined to respond to their letter requesting for information. 12.The application is not opposed despite the Order of the Court of 9th February 2026. On 17th March 2026, the Applicant informed the court that they had served, and the court issued a ruling date (Order of Justice Dr. Gakeri). 13.The court relied on the decision of the Supreme Court of Munya v Kithinji & 2 others [2014] KESC 30 (KLR) on threshold of grant of conservation orders, where the Supreme Court held- ‘Conservatory orders bare a more decided public-law connotation: for they are orders that facilitate orderly functioning within public agencies, as well as uphold the adjudicatory authority of the Court in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues like “the prospects of irreparable harm” occurring during the pendency of a case; or “high probability of success” in the applicant’s case for orders of stay.8. Conservatory orders ought to be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes, and priority levels attributable to the relevant causes.’ 14.The court considered and found the allegation of involuntary membership a serious allegation. This, if true, is a violation of the enabling Act, Section 4 of the Labour Relations Act section 4 to wit-‘ Employee’s right to freedom of association,(1)Every employee has the right to—(a)participate in forming a trade union or federation of trade unions;(b)join a trade union; or(c)leave a trade union.’ This right is now entrenched under Article 41 of the Constitution to wit- ‘41. Labour relations(1)Every person has the right to fair labour practices.(2)Every worker has the right—(a)to fair remuneration;(b)to reasonable working conditions;(c)to form, join or participate in the activities and programmes of a trade union; and (d) to go on strike.’ The petitioners have alleged that union dues were deducted from their salaries for the respondent without their consent. The application is not opposed. On that basis, the court issued an interim conservatory order pending the hearing and determination of the petition barring the respondent and agents and anyone acting at the behest of the union from further deducting the petitioners’ salary as union dues pending the hearing and determination of the petition. 15.The court did not find a prima facie justification for the order for the information requested on an interim basis. 16.Costs in the cause. Parties to take direction on the disposal of the petition on 11th June 2026. 17.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH MAY, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoApplicant : OchiengRespondent: no appearance