https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1962

Union of National Research and Allied Institutes Staff of Kenya (UNRISK) v Italian Space Agency (ASI) & another (Employment and Labour Relations Cause E003 of 2025) [2026] KEELRC 1962 (KLR) (7 July 2026) (Judgment) Neutral citation: [2026] KEELRC 1962 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Malindi Employment and Labour Relations Cause E003 of 2025 K Ocharo, J July 7, 2026 Between Union of National Research and Allied Institutes Staff of Kenya (UNRISK) Claimant and Italian Space Agency (ASI) 1st Respondent Grasi S.C. AR.L Branch of Kenya 2nd Respondent Judgment A. Introduction 1.By a Memorandum of Claim dated 18th February 2025, the Claimant, a trade union duly registered under the Labour Relations Act, 2007, sued the 1st and 2nd Respondents jointly, seeking, in the main, a declaration that the Respondents' refusal to deduct and remit trade union dues and agency fees to the Claimant, in respect of unionisable employees covered by a Collective Bargaining Agreement (CBA) between the parties, was unconstitutional, unlawful and unfair, together with consequential orders for penal sanction, payment of arrears, continuance of deduction, interest and costs. 2.The genesis of the relationship between the parties is a Recognition Agreement dated 16th July 2021 executed between the Claimant, the 1st Respondent (Italian Space Agency, ASI) and the 2nd Respondent (Grasi S.C. AR.L Branch of Kenya), by which the Respondents accorded the Claimant recognition as the sole trade union representing unionisable staff engaged on the San Marco Project at the Luigi Broglio Space Centre, Malindi. Following negotiations, the parties concluded a Collective Bargaining Agreement which was registered by this Court on 11th May 2022 as RCA/CBA No. 113 of 2022, covering the period 1st January 2021 to 31st December 2024. 3.The Claimant's suit was resisted by the Respondents, who filed a Statement of Defence dated 3rd October 2025 and called evidence through Mr. Alberto Costa, the Project-Service Manager of Grasi S.C. AR.L, who testified on behalf of both Respondents pursuant to written authority. B. The Claimant's Case 4.It is the Claimant's pleaded case, as elaborated in the witness statement of its Secretary General, Mr. Zacharia Achacha, that pursuant to the Recognition Agreement of 16th July 2021 and the registered CBA of 11th May 2022, the Respondents were obligated to deduct trade union dues from unionised employees and, upon gazettement of the Deduction of Agency Fee Order (Legal Notice No. 96 of 7th July 2023), agency fees from unionisable employees who benefited from the CBA but were not members of the Claimant. 5.The Claimant avers that the Respondents complied with these obligations up to December 2024, remittance for which month was received on 27th December 2024, but thereafter ceased deducting and remitting both trade union dues and agency fees, notwithstanding a demand letter dated 3rd February 2025 requiring compliance within seven days. 6.The Claimant further pleads that while at a CBA negotiation meeting with the Respondents, it tendered sixty-three (63) letters from individual members who are staff of the Respondents, confirming their continuing membership of the Claimant union and authorising continued deduction of union dues, a position reiterated in its letter dated 6th January 2025, which letters the Claimant contends the Respondents have declined to honour. 7.It is the Claimant's position that there is no order of the Ministry of Labour or of this Court nullifying the deductions of agency fee or trade union dues from the unionisable employees of the Respondents, that it has not received any letters of resignation from its members, and that the CBA of 2021 to 2024 remains, in its view, the only collective agreement in force between the parties and continues to bind the Respondents until formally renewed or terminated. 8.On the foregoing premises, the Claimant seeks, inter alia: (a) a declaration that the Respondents' refusal to deduct and remit trade union dues and agency fees was unconstitutional, unlawful and unfair; (b) an order that the Respondents be found to have committed an offence and be liable to a fine not exceeding Kshs.100,000/= or to imprisonment for a term not exceeding two years, or to both; (c) an order that the Respondents pay to the Claimant, from their own funds, the dues and agency fees that accrued during the default period; (d) an order for continuance of deduction and remittance on a monthly basis; (e) interest; and (f) costs of the suit. C. The Respondents' Case 9.The Respondents' evidence was tendered through the 2nd Amended Witness Statement of Mr. Alberto Costa, sworn on 13th May 2026. The Court notes, for completeness, that an earlier witness statement had previously been filed on the Respondents' behalf; that earlier witness did not, however, testify at the trial, and his statement was neither adopted nor relied upon by either party or the Court. The evidence before the Court on behalf of the Respondents is, accordingly, exclusively that of Mr. Costa. 10.Mr. Costa deponed that he is the Project-Service Manager at Grasi S.C. AR.L, duly authorised to depone on behalf of both the 1st and 2nd Respondents, and that he is conversant with the facts of the dispute. 11.It is the Respondents' case that the Recognition Agreement and the CBA registered as RCA/CBA No. 113 of 2022 lapsed by effluxion of time on 31st December 2024, in accordance with their own terms. The Respondents further aver that following the expiry of the CBA, employees of the 1st Respondent served the employer with letters of resignation from the Claimant union and joined a rival trade union known as the Kenya Scientific Research International, Technical and Institutions Workers' Union. 12.The Respondents state that they have, on many occasions, called upon the Claimant to participate in a ballot exercise for purposes of determining whether the Claimant still commands the simple majority of the Respondents' unionisable employees, and that the Claimant has consistently declined to prove or settle the question of simple majority, and has never itself applied for such a verification exercise. 13.Reliance is placed on Clauses 4(ii) and 4(iii) of the Recognition Agreement, which the Respondents contend are dispositive of the dispute. Clause 4(ii) provides that:“This Agreement will be in force only when UNRISK maintain the simple majority among the group of employer's unionisable employees." 14.Clause 4(iii) further provides that:“In case UNRISK loses simple majority to a rival union for more than six (6) consecutive months the recognition shall be seized by application of law." 15.It is the Respondents' case that the absence of proof of simple majority, coupled with the expiry of the CBA, means that the foundation for both the Recognition Agreement and the statutory Agency Fee Order no longer subsists, and that no unionisable employee is presently benefiting from the expired CBA. 16.The Respondents rely on Section 48(6) of the Labour Relations Act, 2007, which provides:“An employer may not make any deduction from an employee who has notified the employer in writing that the employee has resigned from the union." 17.The Respondents maintain that, notwithstanding the dispute, they have continued to remit (a) agency fees in respect of the few unionisable employees who are not members of any other union; and (b) trade union dues in respect of the few unionisable employees who remain members of the Claimant, and that documentary proof of such remittances, including instructions to remit, bank remittance advices and payroll deduction schedules for the months of December 2024 through August 2025, were exhibited and form part of the record. 18.It is the Respondents' further position that the Claimant has not identified, by name, payroll or personnel number, a single employee who is a member of the Claimant union whose union dues have not been deducted and remitted, and that, contrary to the Claimant's allegation of a blanket refusal, the Respondents have at all times remitted union dues to both the Claimant and the rival union strictly in accordance with the written direction of the individual employees concerned. 19.Mr. Costa prayed that the claim be dismissed with costs. D. The Hearing 20.The matter proceeded to full hearing at which both parties called oral evidence. The Claimant relied on the testimony of its Secretary General, Mr. Zacharia Achacha, who adopted his witness statement dated 18th February 2025 as his evidence-in-chief and produced the Claimant's list and bundle of documents. 21.The Respondents called a single witness, Mr. Alberto Costa, who testified as the sole witness on their behalf and adopted his 2nd Amended Witness Statement as his evidence-in-chief. As already observed, the earlier witness statement filed on record on behalf of the Respondents was not relied upon, the maker thereof having not been called to testify; the Court has accordingly confined itself, in assessing the Respondents' evidence, to the testimony and statement of Mr. Costa. 22.Of particular significance to this determination is the evidence elicited from Mr. Costa in cross-examination. Mr. Costa readily conceded that, going by the documents produced by the Respondents, the Respondents had been making remittances of union dues and agency fees in accordance with those records. He was, however, categorical and maintained, without equivocation, that the Respondents were not paying, and had not been paying, agency fees since the expiry of the CBA on 31st December 2024. This admission was not displaced in re-examination and stands as the Respondents' considered position on the question of agency fees. E. Submissions The Claimant's submissions 23.At the close of the hearing, the Claimant, through the firm of Munee Katu & Associates Co. Advocates, filed written submissions dated 10th June 2026, together with a list of authorities. The Respondents' written submissions, dated 30th May 2026, preceded the Claimant's. The Court has had full regard to both sets of submissions, and to the authorities appended thereto, in arriving at this decision. 24.The Claimant submits that upon registration of the CBA, it became enforceable pursuant to Section 59(5) of the Labour Relations Act, which provides that:“A collective agreement becomes enforceable and shall be implemented upon registration by the Employment and Labour Relations Court and shall be effective from the date agreed upon by the parties." 25.It is further submitted that the request for an agency fee order is a legal entitlement under Section 49(1) of the Labour Relations Act, which the Claimant duly invoked, resulting in the Deduction of Agency Fee Order, 2023 (Legal Notice No. 96 of 7th July 2023). The Claimant emphasises that this Order has not, to date, been rescinded by the Cabinet Secretary, the Ministry of Labour, or any court, and remains in force on its face. 26.The Claimant discloses, with commendable candour, that upon negotiations for a successor CBA covering 2025 to 2028 (proposals for which were forwarded on 11th June 2024, and which have since become the subject of a separate dispute now pending before this Court as ELRC Cause No. E001 of 2025) breaking down, the Respondents ceased deducting union dues and agency fees altogether from January 2025, occasioning the demand letter of 3rd February 2025. The Claimant further discloses that upon institution and service of the present suit, the Respondents resumed deducting and remitting trade union dues only, which continued until August 2025, but without agency fees, which then also ceased. 27.The Claimant submits that in cross-examination, Mr. Costa confirmed that the Respondents' employees had joined the rival union, the Kenya Scientific Research International, Technical and Institutions Workers' Union, but that the Respondents filed no proof of any request to, or order of, the Cabinet Secretary directing deduction of trade union dues to that rival union, nor any check-off forms signed by the employees said to have joined it, as required, in the Claimant's submission, under Section 48(2) and (3) of the Labour Relations Act. The Claimant submits that bundles of letters written by individual employees cannot, in law, substitute for such an order, and that this Court, being a court of law, cannot treat them as such. 28.In support, the Claimant relies on Kenya Scientific Research International, Technical & Allied Institutions Workers Union v Kenya Marine & Fisheries Research Institute; Union of National Research & Allied Institutes Staff of Kenya (Interested Party), ELRC Cause No. 444 of 2014 (Mombasa, Makau J., 25th September 2015), in which the Court, at paragraph 12, held:“The court is satisfied that the claimant has recruited more that 5 unionisable employees from the Respondent and is therefore entitled to a remittance of union dues if she proves that she has properly applied for and obtained an order from the labour minister. In this case the claimant has not produced a copy of the minister's order given under section 48(2) of the LRA. For avoidance of doubt however, if the unionized employees will insist on paying union dues to the claimant, they will risk double deductions because they shall be charged agency fees in respect of any CBA concluded between the respondent and the interested party." 29.It is notable, and the Court records it for completeness, that the Claimant herein (UNRISK) was the Interested Party in that 2014 cause, and the rival union presently recruiting the Respondents' employees in this suit — the Kenya Scientific Research International, Technical and Institutions Workers' Union — was the unsuccessful claimant in it. The Claimant relies on this history for the proposition that, absent a Ministerial order or verified check-off forms in the rival union's favour, deductions cannot lawfully be diverted to it, and that Legal Notice No. 96 accordingly remains the only extant statutory instrument governing deduction in respect of the Respondents' workforce. 30.The Claimant further relies on Section 59(2) of the Labour Relations Act, which provides:“A collective agreement shall continue to be binding on an employer or employees who were parties to the agreement at the time of its commencement and includes members who have resigned from that trade union or employers' association." 31.On the question whether the Recognition Agreement can be treated as spent, the Claimant submits that the Respondents' witness did not demonstrate compliance with Section 54(5) to (8) of the Labour Relations Act, and that a recognition agreement may only be terminated or revoked upon application to, and determination by, the National Labour Board, and not unilaterally by an employer. The Claimant relies on the decision in Kenya Aviation Workers Union v Bollore Transport & Logistics Kenya Ltd & 4 Others; Kenya Shipping, Clearing, Freight Logistics and Warehouses Workers Union (Interested Party), ELRC Cause No. E253 of 2022 (Nairobi, Onyango J., 10th February 2023), in which the Court, citing the Court of Appeal decision in Micato Safaris v Game Hunting & Safari Workers Union, held:“Section 54(5) expressly provides that an employer or group of employees or employers organization who wish to terminate a recognition agreement ought to apply to the national labour board to terminate or revoke a recognition agreement. It is thus the board to terminate the recognition agreement and not the employer, as was held by the Court of Appeal in the case of Micato safaris (Supra)." 32.The Court of Appeal in Micato Safaris, as reproduced in the Claimant's authorities, distinguished a "notice" from an "application", holding that an employer which merely issues notices of termination of a recognition agreement and of stoppage of deduction of agency fees, without applying to the Board to terminate or revoke the agreement, has not lawfully terminated it. 33.Finally, the Claimant relies on Section 19(5) and (6) of the Employment Act in support of its prayer for a fine, and for an order that the Respondents pay the intended beneficiary from their own funds, and submits that the Respondents' conduct in ceasing remittance while Legal Notice No. 96 remained in force, both before and after institution of this suit, was done in bad faith so as to weaken the Claimant financially, and that costs should accordingly follow and be borne by the Respondents. The Respondents' submissions 34.The Respondents submit that Section 48 of the Labour Relations Act, 2007 defines trade union dues as:“a regular subscription required to be paid to a trade union by a member of the trade union as a condition of membership." 35.It is submitted, correctly in the Court's view, that trade union dues are by definition premised on membership, and that a trade union which claims dues from an employer must demonstrate, by evidence, the membership of the employees on whose account the dues are claimed. 36.On the question of agency fees, the Respondents rely on the decision in Kenya Union of Entertainment & Music Industry Employees v Kenya Cultural Centre [2025] KEELRC 641 (KLR), in which the Court (Rutto, J.) held, in a materially similar dispute, that:“Suffice it to say, the CBA was strictly for twenty four months and no more. As such, the CBA lapsed on 31st December 2010 and thereafter, ceased to be in force. In light of the foregoing findings, it follows that the Claimant is not entitled to agency fees from the unionisable employees who ceased to be Union members. This is for the primary reason that agency fee is paid to a trade union for the benefits derived from a CBA. In this case, as the CBA ceased to be in force after 31st December 2010, a claim for agency fees does not lie." 37.The Respondents further rely on Banking Insurance & Finance Union v Rafiki Microfinance Bank [2023] KEELRC 970 (KLR), for the proposition that where employees have resigned from membership of a union, the employer is thereby rendered unable, in law, to deduct and remit union dues on account of the resigned employees, a claim founded on such deductions being liable to dismissal. F. Issues For Determination 38.Having considered the pleadings, the evidence on record and the rival submissions, the Court identifies the following issues as falling for determination:(a)Whether the CBA registered as RCA/CBA No. 113 of 2022 lapsed on 31st December 2024 or continues in force by operation of Clause 30 thereof;(b)Whether the Recognition Agreement dated 16th July 2021 can be treated as terminated or spent absent an application to, and determination by, the National Labour Board;(c)Whether there exists an unresolved dispute as to the Claimant's representativeness vis-à-vis a rival trade union, and if so, the effect thereof;(d)Whether the Claimant has established that it maintains the simple majority of the Respondents' unionisable employees, as required under Clause 4(ii) of the Recognition Agreement;(e)Whether the Claimant proved the existence and membership of the sixty-three (63) employees alleged to have executed check-off forms/letters of continued membership;(f)Whether individual employees who notified the Respondents of their resignation from the Claimant lawfully occasioned cessation of deductions, notwithstanding the wider recognition dispute;(g)Whether the Respondents were in breach of their statutory and contractual obligation to deduct and remit trade union dues;(h)Whether the unrevoked Deduction of Agency Fee Order (Legal Notice No. 96 of 2023), without more, entitles the Claimant to continued agency fees in the circumstances of this case;(i)Whether the Claimant is entitled to any of the reliefs sought, and who should bear the costs of the suit. G. Analysis And Determination Whether the CBA lapsed on 31st December 2024 or continues in force under Clause 30 39.The Respondents' case, and the position advanced by them at trial, is that the CBA registered as RCA/CBA No. 113 of 2022 lapsed by effluxion of time on 31st December 2024. The Claimant, for its part, submits that the CBA became enforceable upon registration pursuant to Section 59(5) of the Labour Relations Act and remains, in its submission, the only collective agreement in force between the parties. Clause 30 of the CBA, which is the operative provision on duration, states:“ 1.This agreement shall be effective from 1st January 2021 – 31st December 2024 and shall remain in force for a period of (4 years) 48 months from the effective date. 2. Thereafter the Agreement shall remain in force. Any revision is subject to either party giving the other party two months in advance a notice of intention to revise, amend or add new clause giving details of revisions, additions or amendments desired." 40.This clause is significant, and the Court records that it does not simply provide for the CBA to expire on 31st December 2024. Sub-clause (2) contains an express continuation mechanism: the Agreement "shall remain in force" thereafter, subject only to either party giving two months' notice of intention to revise it. There is no evidence on record that either party has given such notice with the effect of terminating, as opposed to seeking to revise, the CBA; to the contrary, the record shows the Claimant forwarding proposals for a successor CBA for 2025 to 2028 as early as 11th June 2024, and that those proposals, and the parties' failure to conclude negotiations on them, are the subject of a separate, pending dispute before this Court, ELRC Cause No. E001 of 2025. 41.For this reason, the Court is unable to accept, without qualification, the Respondents' submission — grounded in the reasoning of Kenya Union of Entertainment & Music Industry Employees v Kenya Cultural Centre [2025] KEELRC 641 (KLR) — that the CBA simply lapsed by mere effluxion of the initial 48-month term. That case turned expressly on the finding that the CBA there under consideration contained no clause evincing any intention that it continue beyond its stated term; the Court there was, on its own reasoning, unable to imply a continuation the parties had not themselves provided for. The CBA presently before this Court is materially different: Clause 30(2) is precisely such a continuation clause, and its presence distinguishes this case from the authority relied upon by the Respondents. The Court accordingly finds that the CBA registered as RCA/CBA No. 113 of 2022 did not, without more, lapse on 31st December 2024, but continued, on its own terms, in force pending conclusion of a successor agreement. 42.This finding, however, does not by itself resolve the dispute in the Claimant's favour, for the reasons that follow. Whether the Recognition Agreement can be treated as terminated absent Board action 43.The Claimant submits, with force, that a recognition agreement may only be terminated or revoked upon application to, and determination by, the National Labour Board under Section 54(5) to (8) of the Labour Relations Act, and that an employer's unilateral notice cannot achieve what only the Board may sanction. The Claimant relies on the persuasive authority of Kenya Aviation Workers Union v Bollore Transport & Logistics Kenya Ltd (supra) and the Court of Appeal's holding in Micato Safaris v Game Hunting & Safari Workers Union, distinguishing a mere "notice" from a formal "application" to the Board. 44.The Court accepts the general proposition for which these authorities stand: an employer who purports, by unilateral notice alone, to terminate or revoke an otherwise subsisting recognition agreement, without applying to the National Labour Board as contemplated under Section 54(5), has not thereby lawfully terminated it. That, however, is not squarely the position on the facts of this case. Unlike the position in the authorities cited, the Respondents here have not issued any notice purporting unilaterally to terminate the Recognition Agreement of 16th July 2021. Clause 4(ii) and (iii) of that Agreement is not a mechanism by which the Respondents may unilaterally terminate recognition; it is, rather, a condition which the Claimant itself accepted and signed up to at the very inception of the recognition relationship — namely, that the Agreement "will be in force only when UNRISK maintain the simple majority," failing which, upon proof of sustained loss of majority for six consecutive months, the recognition "shall be seized by application of law." This is a self-executing condition subsequent operating upon proof of an objective fact, agreed between the parties themselves, and is conceptually distinct from an employer's unilateral act of termination of an otherwise unconditional recognition. 45.The Court, however, need not finally and conclusively pronounce on the precise juridical character of Clause 4, nor on whether Section 54(5) extends to self-executing conditions of this kind as well as to unilateral employer notices, because, even resolving that narrow legal question in the Claimant's favour — that is, even proceeding on the footing that the Recognition Agreement has not been formally terminated through the National Labour Board and therefore formally subsists — this would not, without more, establish the Claimant's entitlement to the reliefs it seeks. Those reliefs depend on proof of underlying facts: continued simple majority, and identified membership. It is to those questions that the Court now turns. Whether there exists an unresolved dispute as to representativeness 46.It emerges clearly from the record, and is indeed not seriously contested, that there exists a live dispute between the Claimant and a rival trade union, the Kenya Scientific Research International, Technical and Institutions Workers' Union, over which of the two unions commands the representativeness of the Respondents' unionisable employees. The Claimant has, in the course of this dispute, gone so far as to challenge the validity of a Collective Bargaining Agreement entered into between the rival union and the Respondents. 47.It is trite that where the representativeness of a trade union is placed in question by reason of a rival claim, the appropriate and lawful mechanism for resolving that question is a verification or ballot exercise conducted among the unionisable employees, to establish, objectively and conclusively, which union commands the simple majority. This is the very mechanism contemplated by the recognition framework under the Labour Relations Act, 2007, and it is the mechanism the parties themselves anticipated and provided for under Clause 4 of their Recognition Agreement. 48.The evidence on record, which the Court accepts, is that the Respondents have on multiple occasions called upon the Claimant to participate in such a ballot exercise, and that the Claimant has declined to do so. Critically, and this is a matter the Court finds dispositive, the Claimant has never itself applied for or sought a verification exercise to settle, once and for all, the question of which union enjoys the majority membership. A party which asserts a right contingent upon proof of majority status cannot resist, and must not be heard to decline, the very mechanism by which that status is objectively verified, and cannot, in the same breath, ask this Court to assume in its favour a fact it has been unwilling to have tested. 49.The dispute as to representativeness accordingly remains unresolved, not for want of an available mechanism, but by reason of the Claimant's own default in failing to submit to, or apply for, a ballot. This finding bears directly, as will be seen, on the viability of the reliefs sought. Whether the Claimant maintains the simple majority required under Clause 4(ii) 50.Clause 4(ii) of the Recognition Agreement is unambiguous: the Agreement "will be in force only when UNRISK maintain the simple majority among the group of employer's unionisable employees." This is not a mere recital; it is a condition upon which the continued force and effect of the recognition, and by extension the benefits flowing therefrom, is expressly made contingent. Clause 4(iii) reinforces this by providing that recognition is seized by operation of law where the Claimant loses simple majority to a rival union for a continuous period exceeding six months. 51.This Court, guided by the Court of Appeal's holding in Pius Kimaiyo Langat v Co-operative Bank of Kenya Limited [2017] KECA 152 (KLR), that "it is not the business of courts to rewrite contracts. They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved," is obliged to give effect to Clause 4(ii) and 4(iii) as written. No coercion, fraud or undue influence has been pleaded or proved in respect of the Recognition Agreement. 52.The burden of proving that it maintains the simple majority contemplated under Clause 4(ii) lay squarely on the Claimant, being the party asserting the fact and seeking to derive a benefit from it, in accordance with the ordinary incidence of the burden of proof under Sections 107 and 109 of the Evidence Act. The Claimant did not discharge this burden. No membership register, no verified list of members, and no result of any ballot or verification exercise was placed before the Court to establish that the Claimant, as at the material time, commanded the simple majority of the Respondents' unionisable employees. To the contrary, the unchallenged evidence is that the majority of the Respondents' employees have resigned from the Claimant and joined the rival union. 53.The Claimant having failed to prove maintenance of the simple majority required under Clause 4(ii), and it being undisputed that any loss of majority for a continuous period exceeding six months operates, by the express terms of Clause 4(iii), to seize the recognition by operation of law, the Court finds that the Claimant has not established a continuing entitlement to recognition on the basis of proven majority status. Whether the Claimant proved the alleged 63 members and check-off forms 54.The Claimant pleaded, and its witness maintained, that it possesses sixty-three (63) members who are staff of the Respondents and who executed letters/check-off forms confirming their continued membership, which letters were allegedly handed over to the Respondents at a CBA meeting and again at the Malindi Labour Office before a Conciliator on 2nd December 2024. 55.Notably, the Claimant did not produce before this Court a single one of the sixty-three (63) letters or check-off forms it pleads to be in existence, did not furnish the names, payroll or personnel numbers of the said members, and did not call any of the sixty-three (63) persons, or any sample thereof, to testify or otherwise verify the assertion. What is before the Court is, at best, the Claimant's own letter demanding that the Respondents "reinstate" the 63 persons into the Claimant's membership — a self-serving assertion unsupported by primary evidence of the underlying membership it purports to describe. 56.The Court reiterates that a claim for trade union dues or agency fees which is global and unparticularised, referencing a number of members without identifying them or producing the primary evidence of their membership, falls short of the evidentiary threshold the law requires. A bare pleading, unsupported by the check-off forms or membership documents it invokes, cannot found a finding of fact in the Claimant's favour, still less an order compelling deduction and remittance. This issue is resolved against the Claimant. Whether individual resignations lawfully occasioned cessation of deductions 57.Quite apart from the collective dispute as to representativeness, the Court must address a distinct and logically prior point: whether individual employees who informed the Respondents, in writing, of their resignation from the Claimant, thereby lawfully occasioned cessation of deductions from their own wages, irrespective of the wider recognition dispute. 58.Section 4(1) of the Labour Relations Act guarantees every employee the right to "(a) participate in forming a trade union or federation of trade unions; and (b) join a trade union; or (c) leave a trade union." This is an individual right, personal to each employee, and does not depend upon, or await, resolution of any collective dispute between rival unions or between a union and an employer. Section 48(6) gives that right practical effect for present purposes: "An employer may not make any deduction from an employee who has notified the employer in writing that the employee has resigned from the union." Sections 48(7) and (8), by parity of the scheme reflected in the Claimant's own authorities, further provide that such a notice takes effect the month following the month in which it is given, and that the employer shall forward a copy of it to the trade union. 59.It follows that even if, contrary to the finding above, the Recognition Agreement were to be treated as formally subsisting absent Board action, this would not revive the Respondents' obligation to deduct union dues from those individual employees who have, in their own right, exercised the statutory right to leave the Claimant. The two questions are analytically distinct: the survival of the Recognition Agreement as an instrument between the Claimant and the Respondents is one thing; an individual employee's personal, statutorily-guaranteed right to resign from a trade union of his or her own volition is another, and the latter does not stand or fall with the former. 60.On the evidence, which stands unchallenged in this respect, individual employees of the Respondents did serve notice of resignation from the Claimant. The Court accepts that the Claimant was not, in every instance, itself served with copies of those notices as contemplated under Section 48(8); this default, however, lies at the door of the Respondents as a matter of inter-partes notice, and does not, without more, revive an obligation to deduct from an employee who has personally and validly exercised the right to leave. The appropriate remedy for a failure to notify under Section 48(8) is not an order compelling continued deduction against the employee's stated wishes, but, at most, a demand for compliance with the notification requirement — a distinction the Claimant's pleadings and prayers do not draw, the reliefs sought being pitched, instead, at wholesale continuance of deduction irrespective of individual employees' documented wishes. Whether the Respondents breached their obligation to deduct and remit trade union dues 61.On this issue, the Court is guided in the first instance by the admission of the Claimant's own case, and decisively, by the evidence of Mr. Costa under cross-examination, that the Respondents, per the documents they presented, were making remittances of union dues accordingly. This was not a grudging or qualified concession; it was a candid admission that stands squarely against the Claimant's pleaded allegation of a blanket and continuing refusal to deduct and remit union dues. 62.The documentary record bears this out. The remittance schedules exhibited by the Respondents for the period December 2024 through August 2025 demonstrate continuing monthly remittances to the Claimant in respect of those employees who remain, or are recorded as, members of the Claimant union, alongside remittances to the rival union and to the Central Organization of Trade Unions (COTU-K) in respect of statutory dues, consistent with the Respondents' evidence that deductions are made and remitted strictly in accordance with the direction of the individual employees concerned. 63.The Claimant, for its part, has not identified a single named member whose union dues were deducted but not remitted, or whose dues ought to have been deducted but were not. In the absence of such particulars, and in the face of the Respondents' documentary proof of remittance and the Claimant's own witness's concession on the point, the Court finds that the allegation of breach of the obligation to deduct and remit trade union dues has not been established. Whether the unrevoked agency fee order entitles the Claimant to continued agency fees 64.This is the heart of the dispute, and it is on this issue that the evidence of Mr. Costa was most candid: the Respondents are not paying, and have not since the expiry of the initial term of the CBA been paying, agency fees. The question for determination is not, therefore, whether agency fees have ceased to be paid — that is established on the Respondents' own admission — but whether, in the circumstances of this case, the Respondents remain under a legal obligation to pay them. 65.The Court has already found, contrary to the Respondents' primary submission, that the CBA registered as RCA/CBA No. 113 of 2022 did not simply lapse on 31st December 2024, Clause 30(2) thereof providing for its continuation absent a notice of revision. The Court has also accepted the Claimant's submission that the Deduction of Agency Fee Order, 2023 (Legal Notice No. 96 of 7th July 2023) has not, on the record before it, been formally rescinded by the Cabinet Secretary, this Court, or any other lawful authority. To that extent, the reasoning in Kenya Union of Entertainment & Music Industry Employees v Kenya Cultural Centre (supra), which the Respondents urged as dispositive on the footing that the underlying CBA there had lapsed, is not, without qualification, applicable to the facts of this case. 66.That, however, does not resolve the matter in the Claimant's favour, for the Order's own terms confine its operation to a defined and narrow class of persons: "a unionisable employee who is not a member of the Union of National Research and Allied Institutes Staff of Kenya or any other trade union but is covered by the Collective Bargaining Agreement." The evidence before the Court, which the Claimant has not seriously controverted, is that a substantial number of the Respondents' unionisable employees are, in fact, now aligned with a different, named trade union. Whether or not that rival union's own recruitment is regular in every particular — a question this Court need not and does not determine, that dispute not being between the Claimant and the rival union in this suit — an employee who is, as a matter of fact, a member of "any other trade union" falls outside the class the Order was designed to capture, and cannot simultaneously be treated as a source of agency fee income for the Claimant. 67.This conclusion draws further support from the very authority on which the Claimant places principal reliance, Kenya Scientific Research International, Technical & Allied Institutions Workers Union v Kenya Marine & Fisheries Research Institute (supra), where the Court cautioned, in a passage the Claimant itself extracted, that unionised employees who insist on paying dues to one union while a rival union's claim over the same employees remains unresolved "will risk double deductions." That caution applies with equal, if not greater, force here: an order compelling the Respondents to resume blanket agency fee deductions across the workforce, without first establishing which specific employees presently fall within the class described in Legal Notice No. 96 — that is, employees who are members neither of the Claimant nor of the rival union — would expose those employees to precisely the double-deduction risk the Claimant's own authority warns against. 68.It follows that the burden lay on the Claimant, as the party invoking the Order and seeking to compel its continued enforcement, to demonstrate, with reasonable particularity, which of the Respondents' unionisable employees presently constitute the class described in the Order. As with the claim for union dues, this the Claimant did not do: no verified list, no membership register, and no evidence distinguishing employees who are members of the rival union from those who are members of neither union, was placed before the Court. The Claimant's global assertion that all unionisable employees remain covered, without more, does not suffice. 69.The Court notes, further, that the remittance schedule for December 2024 — the last full month before the rival union's recruitment appears, on the evidence, to have crystallised — records agency fee deductions in respect of numerous employees, corroborating the Respondents' account that deductions were curtailed thereafter in direct response to individual changes in union affiliation, rather than through any wholesale or unlawful repudiation of Legal Notice No. 96 as such. 70.For these reasons, while the Court does not accept that the Deduction of Agency Fee Order has lapsed or been formally rescinded, it finds that the Claimant has failed to prove the essential precondition to its enforcement in the Respondents' current workforce — namely, the identity and extent of the class of employees to whom it presently applies — and the claim for continued agency fees accordingly fails on the evidence, notwithstanding the survival of the Order and the CBA as instruments.The Claimant's reliance on Section 59(2) of the Labour Relations Act and Section 19(5)-(6) of the Employment Act 71.The Claimant's reliance on Section 59(2) of the Labour Relations Act — that a collective agreement "shall continue to be binding ... and includes members who have resigned from that trade union" — is, in the Court's view, unexceptionable but does not assist the Claimant on the facts here in dispute. That provision confirms that the substantive terms of a CBA (wages and benefits) continue to bind and benefit even employees who resign from the contracting union, which is precisely the premise on which the agency fee mechanism itself rests: non-members who enjoy CBA benefits pay agency fees in lieu of dues. It does not, however, dispense with the need to prove which union is entitled to collect on behalf of which employees, nor with the need to identify the class of persons said to be so covered — the very proof the Court has found wanting above. 72.As to Section 19(5) and (6) of the Employment Act, invoked by the Claimant in support of its prayer for a fine and for an order that the Respondents refund and pay the intended beneficiary from their own funds, the Court observes that trade union dues and agency fees are the subject of a specific statutory code under Sections 48 and 49 of the Labour Relations Act, which comprehensively governs their deduction, remittance and enforcement; resort to the general deduction and penal provisions of the Employment Act is, in the circumstances, both unnecessary and, in any event, contingent on proof of a subsisting default, which has not been established on this record. Whether the Claimant is entitled to the reliefs sought 73.It follows from the foregoing findings that none of the reliefs sought by the Claimant can be sustained. Although the Court has found, contrary to the Respondents' primary submission, that neither the CBA nor the Deduction of Agency Fee Order has formally lapsed or been rescinded, the Claimant has not proved the underlying facts — continued simple majority, identified membership, and the specific class of employees presently falling within the Order — upon which alone a finding of unlawful refusal, and the reliefs consequent upon it, could properly rest. The prayer for a declaration that the Respondents' conduct was unconstitutional, unlawful and unfair must accordingly fail, there being no proved breach of any obligation the Claimant has established on the evidence to be presently owed to it. 74.The prayer that the Respondents be found to have committed an offence attracting a fine or a term of imprisonment is equally untenable. This is a civil suit between private parties; the invocation of penal sanction is, in any event, contingent on proof, to the requisite standard, of a subsisting default, which has not been established, and is in any event more properly addressed under the specific statutory code in Sections 48 and 49 of the Labour Relations Act than under the general provisions of the Employment Act. No such order can properly issue in these proceedings. 75.The prayer for an order compelling the Respondents to pay, from their own funds, the dues and agency fees allegedly outstanding for the period of default, and the prayer for continuance of deduction and remittance, are similarly unsustainable, no default having been proved on the evidence adduced. The ancillary prayers for interest and for any other relief the Court may deem fit necessarily fall away, there being no primary relief upon which they can attach. 76.In the result, the Court is satisfied that the Claimant's suit, considered against the pleadings, the evidence, and the applicable law — including the matters properly raised in the Claimant's own submissions, which the Court has weighed fully — nonetheless fails for want of proof of the facts essential to ground the reliefs sought, and lacks merit in its entirety. H. Disposition 77.For the foregoing reasons, the Court makes the following orders:(1)The Claimant's claim dated 18th February 2025 be and is hereby found to lack merit and is dismissed in its entirety.(2)Each of the reliefs sought at paragraph 17(a) to (g) of the Memorandum of Claim is declined.(3)Each party to bear its own costs. DATED, SIGNED AND DELIVERED AT MALINDI THIS 7TH DAY OF JULY, 2026.……………………………………………OCHARO KEBIRAJUDGE