https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1985

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MALINDI ELRC CAUSE NO. E001 OF 2025 UNION OF NATIONAL RESEARCH AND ALLIED INSTITUTES STAFF OF KENYA (UNRISK)....................................................................CLAIMANT **VERSUS** 1. ITALIAN SPACE AGENCY (ASI) 2. GRASI S.C. AR.L BRANCH OF KENYA...................................................................RESPONDENTS **JUDGMENT** **A. Introduction** 1. By a Memorandum of Claim dated and filed on 23rd January 2025, the Claimant, Union of National Research and Allied Institutes Staff of Kenya (“UNRISK” or “the Union”), moved this Court seeking, in the main, an order compelling the Respondents to sit, negotiate, conclude and sign a Collective Bargaining Agreement (“CBA”) for the period 2025 to 2028, within thirty (30) days of judgment, and to forward the concluded agreement to the Central Planning and Monitoring Unit (“CPMU”), Ministry of Labour, for onward transmission to this Court for registration within a further thirty (30) days. *“That, the claimant union having a valid Recognition Agreement with the Respondents which is a mandatory requirement for engagement of any employer and like the case before your Lordship the Respondents as provided for under section 54 of the Labour Relations Act, the Respondents must honour such Agreement for purposes of Collective Bargaining Agreement. The first C.B.A having expired on 31/12/2024 whereby the claimant union progressed to make proposals for the renewal of the said C.B.A. to cover for the period of 2025 to 2028, it is the claimant's humble prayers that this Honourable Court be pleased to compel the Respondents jointly to sit with the Claimant union, negotiate, conclude and sign 2025 to 2028 Collective Bargaining Agreement within thirty (30) days from the date of this judgment and forward the same to Central Planning and Monitoring Unit (C.P.M.U), Ministry of Labour for analysis and onward transmission to the Employment and Labour Relations Court within thirty (30) days for registration by the Honourable Court.”* 2. The dispute has its genesis in an Agreement Relative to Recognition and Negotiation Procedure (“the Recognition Agreement”) executed between the Union and the Respondents on 16th July 2021, by which the Respondents accorded the Union full recognition as the sole trade union representing the interests of unionisable employees engaged on the San Marco Project at the Luigi Broglio Space Centre, Malindi. 3. Pursuant to the Recognition Agreement, the parties negotiated a Collective Bargaining Agreement for the period 2021 to 2024, which was registered by this Court on 11th May 2022 as C.B.A. No. E012 of 2022 (RCA No. 113 of 2022). 4. The 2021–2024 CBA lapsed by its own terms on 31st December 2024. By a letter dated 11th June 2024, the Union forwarded to the Respondents its proposals for a successor Collective Bargaining Agreement to run from 2025 to 2028 and proposed negotiation dates of 18th and 19th July 2024. The Union avers that the Respondents did not respond substantively and became, in its own words, “adamant” and declined to sit and negotiate. 5. Consequently, on 22nd August 2024 the Union reported a trade dispute to the Cabinet Secretary, Ministry of Labour and Social Protection, pursuant to Section 62 of the Labour Relations Act, 2007 (“the LRA”), on the issue of “Refusal by Management to negotiate renewal of current CBA.” The Chief Industrial Relations Officer, by letter dated 27th September 2024, appointed Mr. Justus Kasyoki David of the Malindi Labour Office as conciliator. 6. A conciliation meeting was held on 2nd December 2024. It did not result in a settlement, and on 5th December 2024 the conciliator issued a Certificate of Disagreement recording, among others, the following findings: *(a) that the Union had a genuine grievance against the management;* *(b) that there existed a Collective Bargaining Agreement between the parties;* *(c) that the management had informed the conciliator that the Union had lost the bulk of its members to a rival union, namely Kenya Scientific Research International Technical and Institutions Workers Union; and* *(d) that “the Union had lost 147 members out of 167 members and therefore remained with only 20 men, which is too low.”* 7. The Union, by a letter dated 11th December 2024, accepted the conciliator's recommendation and the Certificate of Disagreement, and thereafter, having obtained authority from its Secretary General, instituted the present suit through its advocates, M/s Munee Katu & Associates Company Advocates. **B. The Claimant's Case** 8. The Claimant's case, as pleaded in the Memorandum of Claim and amplified in the witness statement of its Secretary General, Mr. Zacharia Achacha, is that: (a) the Union has, since 16th July 2021, a valid and subsisting Recognition Agreement with the Respondents, which has never been formally revoked; (b) pursuant to that Recognition Agreement, the parties negotiated and registered the 2021–2024 CBA; (c) upon the lapse of that CBA, the Union duly forwarded its proposals for a successor CBA for 2025 to 2028, and did all that was procedurally required of it, including reporting the resultant trade dispute and participating in conciliation; and (d) the Respondents, having recognised the Union and being under a statutory duty under Section 57(1) of the LRA to conclude a collective agreement with a recognised trade union, cannot lawfully decline to negotiate. 9. At the hearing, CW1, Mr. Zacharia Achacha, adopted his witness statement as his evidence-in-chief and produced the Claimant's bundle of documents, including the Recognition Agreement, the registered 2021–2024 CBA, the correspondence between the parties, and the Certificate of Disagreement. 10. Under cross-examination by counsel for the Respondents, CW1 made the following material admissions, which are on the record of this Court: *(a) that the conciliator, in his report culminating in the Certificate of Disagreement, had recorded that during the conciliation process it emerged that the Union's members had defected to the rival union, Kenya Scientific Research International Technical and Institutions Workers Union, and that the Union then had only twenty (20) members remaining out of a former one hundred and sixty-seven (167);* *(b) that the Union had not, either before the conciliator or before this Court, presented a list or register of the employees who were, as at the date of hearing, its current members;* *(c) that the question of majority membership was central and indeed indispensable to the pursuit and maintenance of a recognition agreement between a trade union and an employer;* *(d) that there was, in addition, a suit pending before this Court between the Union and the rival union touching on the question of membership, being Malindi ELRC Cause No. E003 of 2025; and* *(e) that majority membership is the foundation upon which the right to a collective bargaining agreement rests.* 11. A party's own witness could scarcely have made a more candid concession against interest, and the Court returns to the significance of these admissions in its analysis below. **C. The Respondents' Case** 12. The Respondents entered appearance and filed a joint response admitting the existence of the industrial relationship and the Recognition Agreement, but denying that the Union retained the right to compel negotiation of a fresh CBA, on the ground that the Union no longer commanded a simple majority of the Respondents' unionisable employees. 13. The Respondents' evidence was given by RW1, Mr. Giuseppe Gregorini, Project–Service Manager at Grasi S.C. AR.L, who relied on his Amended Witness Statement dated 22nd January 2026 as his evidence-in-chief. RW1 deposed, in material part, that: (a) he was aware of the existence of the Recognition Agreement and the Collective Bargaining Agreement between the Union and the Respondents; (b) the majority of the employees who were formerly members of the Union had since left its membership and joined a rival union; (c) the Respondents' records showed that the Union no longer held a simple majority of the unionisable employees; (d) the Respondents had, on several occasions, called upon the Union to demonstrate that it retained a simple majority, without success; (e) the Union's continuing failure to demonstrate a simple majority had led the Respondents to apply to the National Labour Board for revocation of the Recognition Agreement; (f) the Respondents had not denied the Union access to its employees for purposes of verifying its membership; and (g) he prayed that the claim be dismissed. 14. RW1 testified on 27th January 2026 and was cross-examined by counsel for the Claimant, Ms. Mwakizozo. On cross-examination, RW1 confirmed: (a) that there subsists a valid Recognition Agreement between the parties which has, as a matter of fact, not been formally revoked and continues as a working relationship; (b) that the Respondents received the Union's proposal for the 2025–2028 Collective Bargaining Agreement in the course of 2024, and made a deliberate decision not to sit or negotiate on the strength of Clause 4(ii) of the Recognition Agreement, on the ground that the Union had lost its simple majority; (c) that the Respondents' unionisable employees had confirmed, in writing, that they had resigned from the Union and joined the rival union, and had directed the Respondents to remit their union dues to that rival union; and (d) that he was not conversant with, and had not specifically relied upon, Clause 4(iii) of the Recognition Agreement in arriving at the Respondents' position. **D. Submissions** 15. Both parties filed written submissions, which this Court has carefully considered. 16. The Claimant submitted, in summary, that it possesses a valid, subsisting and unrevoked Recognition Agreement; that Section 57(1) of the LRA obligates an employer who has recognised a trade union to conclude a collective agreement with it; that no evidence was placed before the Court of a Ministerial order revoking check-off facilities in favour of any rival union under Section 48 of the LRA, nor evidence that the Respondents had lawfully applied to the National Labour Board to revoke the Recognition Agreement in accordance with Section 54(5) of the LRA; and that, in the circumstances, the Respondents ought to be compelled to negotiate. The Claimant relied on Kenya Union of Commercial Food & Allied Workers v Sanpac Africa Limited, Cause No. 722 of 2012; Kenya Scientific Research International Technical & Allied Institutions Workers Union v Kenya Marine & Fisheries Research Institute, Cause No. 444 of 2014; and Kenya Union of Commercial Food and Allied Workers v U-Fresh Enterprises Limited [2025] KEELRC 406. 17. The Respondents, on the other hand, submitted that the Recognition Agreement is, by its own Clause 4(ii), of force only for so long as the Union maintains a simple majority of the unionisable employees, and that Clause 4(iii) provides that where the Union loses simple majority to a rival union for more than six consecutive months, the recognition “shall be seized by application of law.” The Respondents pointed to the Certificate of Disagreement, which is the Claimant's own document, as proof that the Union had, by December 2024, lost 147 of its 167 members and retained only 20 – a number “too low” even on the conciliator's own assessment. The Respondents relied on Kenya Union of Commercial Food and Allied Workers v Kitui Teachers DT Sacco Society Limited [2023] KEELRC 853; Kenya Jockey and Betting Workers Union v Resort Kenya Limited [2014] KEELRC 12; Bakery, Confectionery, Food Manufacturing and Allied Workers' Union (Kenya) v Proctor & Allan (E.A) Limited [2015] KEELRC 179; Bakery, Confectionery, Food Manufacturing and Allied Workers Union (K) v Mombasa Maize Millers Limited & 3 Others [2016] eKLR; and Giella v Cassman Brown & Co Ltd [1973] EA 358. **E. Issues for Determination** 18. Having considered the pleadings, the evidence on record and the rival submissions, the Court identifies the following issues for determination: *(i) Whether the Claimant, as at the material time, held a simple majority of the Respondents' unionisable employees;* *(ii) What is the legal effect of the loss of simple majority on a subsisting Recognition Agreement, and in particular the effect of Clause 4 of the Recognition Agreement between the parties;* *(iii) Whether, in the circumstances, the Claimant is entitled to an order compelling the Respondents to sit, negotiate, conclude and sign a Collective Bargaining Agreement for 2025 to 2028; and* *(iv) What orders should issue.* **F. Analysis and Determination** **(i) Whether the Claimant held a simple majority** 19. Section 54(1) of the Labour Relations Act provides that “an employer ... shall recognise a trade union for purposes of collective bargaining if that trade union represents the simple majority of unionisable employees.” Section 57(1) in turn provides that an employer who has recognised a trade union “shall conclude a collective agreement with the recognised trade union setting out the terms and conditions of service for all unionisable employees covered by the recognition agreement.” 20. It is common ground, and indeed not disputed by the Respondents, that the Claimant was, as at 16th July 2021, properly recognised, and that a Recognition Agreement and a CBA were concluded and registered in consequence. The question that falls for determination, however, is not whether the Claimant was once entitled to recognition, but whether, at the time it sought to compel negotiation of a fresh CBA, it retained the simple majority upon which that recognition is, by its own terms, made to depend. 21. On this question, the evidence before the Court is unambiguous and, to a considerable extent, undisputed. The Certificate of Disagreement, which is the Claimant's own document and upon which the Claimant itself pleads and relies, records in categorical terms that “the Union had lost 147 members out of 167 members and therefore remained with only 20 men, which is too low.” This finding was made by the conciliator appointed under the very statutory conciliation process which the Claimant itself invoked, and which the Claimant, by its letter of 11th December 2024, expressly accepted. 22. That position was confirmed, rather than contradicted, by the Claimant's own witness. CW1 admitted on cross-examination that the conciliator's report recorded the Union's defection to the rival union and the resulting membership of only twenty (20); that the Union had, up to and including the hearing of this suit, never furnished the Court or the Respondents with a list of its current membership; that a related suit, Malindi ELRC Cause No. E003 of 2025, remains pending between the Union and the rival union over the very question of membership; and, tellingly, that majority membership is, in CW1's own words, “key to a collective bargaining agreement.” 23. RW1's evidence was to like effect: that the Respondents' unionisable employees had, in writing, confirmed their resignation from the Union and their enrolment with the rival union, and had directed that union dues be remitted accordingly. While the Claimant, both in its response to the 2nd Respondent's defence and in submissions, correctly points out that the Respondents did not produce a Ministerial order under Section 48(2) of the LRA authorising check-off to the rival union, nor documentary proof, in strict compliance with Section 48(8) of the LRA, of resignation notices forwarded to the Union, this deficiency does not assist the Claimant's case. The absence of formal check-off documentation as between the Respondents and the rival union goes only to whether that rival union may lawfully receive deducted dues; it does not, and cannot, resuscitate the Claimant's own admitted loss of majority membership – a fact established independently by the Claimant's own conciliation record and by the candid admission of its own witness. 24. The Court accordingly finds, on a preponderance of the evidence, that as at the time material to this suit the Claimant did not hold, and has not demonstrated that it holds, a simple majority of the Respondents' unionisable employees. **(ii) The effect of loss of simple majority on the Recognition Agreement** 25. Clause 4 of the Recognition Agreement between the parties, dated 16th July 2021, provides as follows: *“(ii) This Agreement will be in force only when UNRISK maintain the simple majority among the group of employer's unionisable employees. (iii) 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.”* 26. This is not a case in which the Court is asked to import into the parties' bargain a condition or a consequence that the parties themselves did not contemplate. The parties expressly and freely contracted, in the clearest terms, that the continued subsistence of the Recognition Agreement is contingent upon the Union's continued possession of a simple majority, and that the loss of that majority to a rival union, if it persists for more than six consecutive months, terminates the recognition automatically, by operation of law, and without the need for any further act, application or order of the Court or of the National Labour Board. 27. The findings of the conciliator, dated 5th December 2024, and the admissions of CW1 himself, establish that the Union's loss of majority was known and acknowledged by the Union from at least the conciliation stage in late 2024. The suit was not filed until 23rd January 2025, and was heard and determined well over a year later. On any reckoning, the six-month period contemplated in Clause 4(iii) has long since lapsed. The Recognition Agreement, on the plain and unambiguous language the parties chose for themselves, therefore stood terminated by operation of law well before this matter came on for hearing. 28. This finding accords with the settled position of this Court on the relationship between recognition and majority membership. In Kenya Union of Commercial Food and Allied Workers v Kitui Teachers DT Sacco Society Limited [2023] KEELRC 853 (KLR), the Court held that “a trade union can lose its place on the collective bargaining table if its membership drops below the simple majority threshold,” and further, that “a trade union is not insulated from being edged out of an establishment by the existence of a recognition agreement.” Similarly, in Kenya Jockey and Betting Workers Union v Resort Kenya Limited [2014] KEELRC 12 (KLR), the Court held that “where membership of a union has changed and there is no simple majority, there is the possibility of the subject union losing on recognition that they have previously enjoyed due to the simple fact of lack of a simple majority,” and that “where the simple majority lapses due to [the] factor that more employees have resigned and issued notices to the employer, then the recognition of the trade union becomes frustrated by operation of the law.” In Bakery, Confectionery, Food Manufacturing and Allied Workers' Union (Kenya) v Proctor & Allan (E.A) Limited [2015] KEELRC 179 (KLR), the Court observed that “a union has a right to represent and bargain on behalf of its members employed in any organization or enterprise only if such union has a simple majority of members in that organization or enterprise as provided under section 54 of the Labour Relations Act.” And in Bakery, Confectionery, Food Manufacturing and Allied Workers Union (K) v Mombasa Maize Millers Limited & 3 Others [2016] eKLR, Rika J. observed pointedly that “recognition, once granted, must therefore not be viewed as cast in bronze. Labour is highly mobile,” and that a recognition agreement “may come to an end through its own terms.” 29. Those authorities are directly in point and this Court is bound to, and does, follow them. The Union's argument, both in its pleadings and submissions, that a Recognition Agreement which has “not been revoked” through a formal Labour Board process remains fully operative regardless of the state of its membership, misapprehends the true legal position. Where, as here, the parties have themselves stipulated in the Recognition Agreement the precise mechanism and consequence of a loss of majority – automatic termination by operation of law after six months of continuous minority status – the Union cannot be heard to say that some further, additional act of revocation by the National Labour Board is a precondition to that consequence taking effect. To hold otherwise would be to rewrite the parties' own bargain and to permit a trade union to enjoy the fruits of exclusive recognition long after it has ceased, in fact, to represent the workforce it purports to speak for – a result inconsistent with the very rationale of Sections 54 and 57 of the LRA, which tie the privilege of recognition, and the correlative duty to bargain, to the fact of majority representation. 30. The Court has considered the authorities relied upon by the Claimant. In Kenya Union of Commercial Food & Allied Workers v Sanpac Africa Limited, Cause No. 722 of 2012, and in Kenya Union of Commercial Food and Allied Workers v U-Fresh Enterprises Limited [2025] KEELRC 406, this Court ordered the conclusion and signing of collective bargaining agreements that had already been substantively negotiated between the parties, where the employer's majority-membership objection either did not arise or had been overtaken by the parties' own conduct at the negotiating table, and where the sole outstanding issue was execution of an agreement already agreed in substance. Those cases are readily distinguishable. In the present matter, the parties never got to the negotiating table at all in respect of the 2025–2028 CBA; the Respondents' refusal to negotiate was raised, from the outset, squarely on the ground of the Union's loss of majority, a ground borne out by the Union's own conciliation record and its own witness's testimony. Kenya Scientific Research International Technical & Allied Institutions Workers Union v Kenya Marine & Fisheries Research Institute, Cause No. 444 of 2014, is equally unhelpful to the Claimant: that decision, far from assisting a union that had lost its majority, expressly held that a claimant union which had “not recruited a simple majority” of the relevant workforce “never met the threshold for the grant [of] recognition ... to represent her unionisable staff for purposes of collective bargaining.” If anything, that authority reinforces, rather than displaces, the principle that majority membership is the foundation of the right the Claimant now seeks to enforce. **(iii) Whether the Claimant is entitled to the orders sought** 31. The Court is alive to, and endorses, the observations of this Court in Kenya Jockey and Betting Workers Union v Resort Kenya Limited [2014] KEELRC 12 (KLR), that employees retain, under Article 36 of the Constitution and Section 4 of the LRA, an individual and untrammelled right to join, or to leave, a trade union of their choosing, and that where a rival union has lawfully attracted the membership that a claimant union has lost, “the claimant must agree/accept to take stock and work towards regaining their vibrancy for simple majority,” rather than seek to compel, through the coercive machinery of this Court, an employer to negotiate with a union that the workforce has, in fact, largely abandoned. To sustain the present suit and grant the orders sought would, in the circumstances disclosed by the evidence, occasion precisely the “gross miscarriage of justice” that this Court cautioned against in that decision. 32. In the result, the Court finds that the Claimant has not proved its case on a balance of probabilities; that the Collective Bargaining Agreement for the period 2021 to 2024 lapsed on its own terms; and that the Recognition Agreement, by operation of Clause 4(iii) thereof, ceased to subsist upon the Claimant's continuous loss of simple majority for a period exceeding six months. The Claimant is not, in the circumstances, entitled to the orders sought, or to any of them. **G. Disposition** 33. For the foregoing reasons, the Court makes the following orders: *(i) The Claimant's suit dated 23rd January 2025 be and is hereby dismissed in its entirety;* *(ii) For the avoidance of doubt, no order is made compelling the Respondents, or either of them, to sit, negotiate, conclude or sign any Collective Bargaining Agreement for the period 2025 to 2028;* *(iii) Given the nature of this dispute, and in the interest of fostering sound industrial relations between the parties going forward, each party shall bear its own costs of the suit.* It is so ordered. Dated, signed and delivered at Malindi this 7th day of July 2026 OCHARO KEBIRA JUDGE