The claimant is a registered trade union. The respondent is a limited liability company. The respondent has about 40 unionisable employees.
In April 2025, the claimant recruited 38 unionisable employees in the service of the respondent as its members. The claimant has attained a simple majority and signed the check-off forms.
In May 2025, the claimant approached the respondent seeking recognition. Instead of responding, the respondent began intimidating employees not to join the claimant membership. On 30 June 2025, the respondent stopped the employment of 6 union members. On 1 July 2025, the respondent brought in the police to rough up and arrest the employees who had joined the union. They were reported to Makupa Police station, where the claimant bodied them out on 2 July 2025.
On 1 July 2025, while the unionised employees were still in police custody, the respondent served them with notices to show cause via WhatsApp, giving them 24 hours to respond. The respondent knew that these employees were in custody and would not be able to answer.
Upon release, the employees responded to the show-cause notices.
The Office of the Director of Public Prosecutions (ODPP) has since terminated the intended prosecution of the employees.
Despite the claimant sending a draft recognition agreement to the respondent, the latter has refused to sign. The claimant reported a dispute to the Minister, who appointed a conciliator. Due to the arrest of its members, the claimant officers were unable to attend the conciliation scheduled for 1 July 2025. Due to the conduct of the respondent, it is not practical to engage in conciliation.
The claimant is seeking:
- The respondent is ordered to pay union dues for the duration since the employees became members.
- The respondent is directed to sign the recognition agreement and commence collective bargaining within 30 days therefrom.
- The respondent is directed to cease harassment of unionisable employees.
- Costs of the suit.
The claimant called Yusuf Otieno Owang (the grievant). He testified that he had been in the employment of the respondent until 1 July 2025, when he reported for work, and, as per practice, all employees went for prayers. However, the human resources manager called several employees, including him, to the open grounds. They were then locked in the washrooms.
Twelve employees in total were identified. The respondent called each employee to the office and demanded that they sign the form to leave the union membership on the basis that the union had created violence. The 12 employees refused to sign the letters. The respondent called the police, who arrested them and took them to Makupa police station.
Only one employee, Wakaba, agreed to sign the letter, and he was allowed back to work, leaving 11 grievants.
On 2 July 2025, the claimant paid the balance and the grievants were released. Upon checking their phones, they found notices to show cause issued by the respondent, requiring a response within 24 hours. They quickly replied and denied the allegations that they had been violent while at work. The police did not prefer any criminal charges, as the ODPP found no reasonable cause.
Otieno testified that when they reported to work, they were served with suspension letters. They have not been recalled to work. The claimant filed suit seeking that the respondent stop the harassment and intimidation and, upon recruitment, recognise a simple majority of unionisable employees.
Upon cross-examination, Otieno testified that he had a written contract of employment with the respondent as a machine operator paid KSh. 25,000 per month. He was last paid on 15 July 2025. His suspension was on 2 July 2025. He has not been recalled to work since.
Otieno testified that on 30 June 2025, there was no unrest at work. The respondent called the police after 12 employees were locked in the washrooms. Texas Alarm Security were guarding the premises, and there was no unrest as alleged by the respondent.
The claimant is seeking recognition by the respondent. Upon the recruitment of a simple majority, the orders sought in the claim are justified.
Otieno testified that he has tried to return to work, but the respondent insists that the court issued orders directing the parties to maintain the status quo. The respondent took this to mean that they should not allow the grievants back to work.
In response, the respondent has denied the claims and stated that in May 2025, the claimant forwarded a draft recognition agreement for signing. This was shocking, as there had been no mutual understanding on the issue before. The respondent sought particulars; there were no check-off forms to confirm membership.
In June 2025, the claimant served the respondent with the check-off forms, alleging that 37 employees had joined the union and that the union should be recognised. The claimant also demanded the payment of union dues. However, the 37 claimants did not meet the threshold for recognition. The respondent has 80 unionisable employees. Of the 37 recruited by the respondent, 4 were on probation and have not yet been confirmed. The alleged intimidation of 12 employees is not correct since they rioted within the work premises. This is conduct that caused chaos without reasonable cause. The matter was reported to the security personnel.
The issue of the claimant''s recognition does not arise, as it has not reached the legal threshold. Recognition cannot be forced upon the respondent. There is no prevailing reason to justify the orders sought.
There are no cogent reasons why the claimant abandoned the conciliation process.
The 12 employees who were issued show-cause notices were found to have caused workplace unrest. This is addressed under section 41 of the Employment Act.
In evidence, the respondent called Victoria Muia, the human resources manager, who testified that the dispute herein was referred to conciliation and that a conciliator was appointed. Through a letter dated 26 June 2025, both parties were invited to conciliation. The meeting was scheduled for 10 July 2025, but the claimant asserts that, due to 12 employees miscoding themselves on 1 July 2025, the process was abandoned.
Ms Muia testified that the matter before the conciliator concerned the recognition of the claimant''s claim. The issue of the 12 employees is different. There is no intention on the part of the respondent to terminate the employment of the 12 employees as alleged. The employees who wish to join the union are free to do so. From the 12 employees who caused unrest, the remaining 20 have no reason not to work peacefully for the respondent.
Ms Muia testified that the events on 1 July 2025 were shocking, as 12 unruly employees insisted that two employees whose term contracts had ended be renewed. Those four employees on probation should be reinstated and confirmed. This conduct offends the provisions of section 80 of the Labour Relations Act. The conduct of the 12 employees prompted security to intervene and seek reinforcement from Makupa Police Station, and 11 were arrested. This matter differed from issues related to the respondent''s recognition of the claimant''s claim. At the time, the problem was conciliation and was unrelated to the 12 employees who engaged in misconduct and warranted the issuance of show-cause notices.
Ms Muia testified that the respondent has 80 unionisable employees. The clamant has only recruited 37, which falls short of the required threshold. Since the recruitment, some have left for various reasons, reducing the unionised workforce.
Following the court orders herein, the respondent followed the status quo as directed. There is no refusal for recognition, save that it should follow due process.
At the close of the hearing, both parties filed written submissions.
From the pleadings, evidence and written submissions, the issues which emerge for determination are:
Whether the respondent should be directed to deduct and remit union dues to the claimant;
Whether the respondent should be directed to sign a recognition agreement with the claimant; and
Whether the respondent should be directed to cease harassing the claimant members.
What comes out clearly in this matter is that, before the claimant filed suit, there was a dispute reported to the Minister about the recognition of the claimant by the respondent. There was a meeting due on 10 July 2025 before the suit was filed.
The court takes it that upon the arrest of 12 employees of the respondent who are members of the claimant on 1 July 2025, such scuttled the conciliation process. The claimant moved the court under a Certificate of Urgency dated 5 July 2025, seeking various orders, including the stoppage of the disciplinary process against the 12 employees and their members. The reasons were that the respondent was victimising the 12 employees due to unionisation.
On 9 July 2025, the court directed as follows:
In the interim, the Orders of status quo (things as they stand) are hereby issued based on the notices of suspension; no termination of employment shall issue.
The response is that the claimant filed suit while the conciliation process was ongoing.
The matters relating to the 12 employees were unruly behaviour while at work, which was reported by security, and they requested police reinforcement. These employees opposed the non-renewal of term contracts and agitated for the confirmation of those on probation.
For the misconduct, the matter is being addressed under section 41 of the Employment Act. Upon the court''s direction that the parties maintain the status quo, no action has been taken against the 11 employees who were issued notices to show cause.
On the question of recognition agreement, Section 54(1) of the Labour Relations Act provides as follows:
- An employer, including an employer in the public sector, shall recognise a trade union for purposes of collective bargaining if that trade union represents the simple majority of unionisable employees.
Recognition of a trade union which has recruited at least a simple majority of unionisable employees is not a matter of choice for the employer. It is also not automatic for the trade union that has not achieved a simple majority.
Each party, the employer and the trade union, are regulated under the Labour Relations Act as held in Kenya Union of Domestic Hotels Educational Institutions Hospitals and Allied Workers v Board of Management Rubate Secondary School [2025] KEELRC 3339 (KLR).
Indeed, upon the admission by the parties that this matter was pending conclusion before the claim was filed, that process ought to have been completed.
As things stand, the shop floor being fluid, with some employees exiting for various reasons and the employer taking on board new employees, the claimant should return to the shop floor and secure a simple majority, and recruit sufficient numbers from unionisable employees before seeking recognition.
The response that the respondent has 87 unemployable employees based on the statutory deductions was not challenged. The claimant''s evidence that it has recruited 37 employees falls short of the legal threshold for recognition.
The claimant must return to the shop floor to address the numbers. The respondent should not deny the claimant reasonable access to the shop floor.
On whether the respondent should be directed to sign the recognition agreement, as set out above, without meeting the legal threshold, the claimant cannot enjoy recognition by the respondent.
On whether there is victimisation of the claimant members by the respondent, through notices to show cause dated 1 July 2025, the respondent noted as follows:
It has come to management''s attention that on Tuesday, 1 July 2025, you were observed standing in small groups with employees on the factory premises, engaging in conduct that encouraged your fellow workers to withhold their labour. This behaviour reportedly stemmed from dissatisfaction regarding the release of certain employees the previous day.
Whereas unprotected industrial action is unlawful, the employees who engage in unionisation are protected under Article 41 of the Constitution. An employee’s membership or proposed membership of a trade union, or the participation or proposed participation of an employee in the
Activities of a trade union outside working hours, or with the employer''s consent within working hours, are lawful. Termination of employment on the basis that the employee is undertaking lawful activities of the trade union is unfair under section 46 (c) and (d) of the Employment Act.
Section 46 of the Employment Act protects lawful activities of unionised employees as held in Kudheiha Workers v BOM Dr Babla Diani Girls Secondary School [2025] KEELRC 69 (KLR). Hence, the employer should allow legitimate and valid union activities at the shop floor without compromise to operations, as held in Kenya County Government Workers Union v Kericho Water and Sanitation Company Limited [2025] KEELRC 1863 (KLR).
From the evidence, it is apparent to the court that, by 1 July 2025, the claimant and the respondent had ongoing conciliation meetings underway. The claimant sought recognition, while the respondent maintained that the legal threshold had not been met. The unionised employees on the shop floor were agitating for contracts that had lapsed to be renewed and for probationary employees to be confirmed.
Whereas the issue of whether to renew an expired contract or confirmation of those on probation are managerial prerogatives, agitation for unionisation at the shop floor should be addressed as a fundamental right that is protected under Article 41 of the Constitution. However, the trade union that has not achieved the legal threshold should ensure that its members do not cause unnecessary stoppage of work to assert recognition.
The issue then is that, upon the claimant moving the court to allow the matter to be heard, the court stayed the termination of employment based on the notices already issued to the grievants. The grievants thus remain the employees of the respondent unless otherwise such employment is lawfully terminated.
To take a view that the order for status quo shopped the employment process, such an interpretation was not correct. The respondent has denied itself the labour of these employees. The show cause notices remain active. These shall be processed with a conclusion.
The grievants remain the employees of the respondent until their employment is lawfully terminated.
As members of the claimant, the grievants shall resume their employment, unless lawfully terminated. The respondent shall be at liberty to conclude the show cause notices with a conclusion.
In this regard, as employees of the respondent, the grievants shall be paid their due wages, less union dues deductions, until employment is lawfully terminated.
Accordingly, the claim as addressed above, the following orders are herein issued:
- The claimant shall return to the shop floor for recruitment of members until it attains the simple majority, after which recognition can be addressed.
- The respondent shall allow the claimant reasonable access to the shop floor.
- The grievants shall resume their duties with the respondent immediately, and shall be paid wages due from 15 July 2025.
- The respondent shall be at liberty to conclude the notices to show cause dated 1 July 2025.
- Upon the check-off forms, the respondent shall deduct and remit trade union dues to the claimant commencing 30 days from the date hereof.
- For the claim, each party to bear its costs.
Delivered in open court at Voi, this 8th day of December 2025.
M. MBARŨ
JUDGE
In the presence of:
Court Assistant: Kaseso
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