1. The Kenya Plantation & Agricultural Workers Union (the Union) recruited employees of Zeeflora Ltd (the Respondent) in May, September and October 2023 and forwarded the Form Ss to the Respondent with a request to commence the deduction of union dues. Later, the Union sought for recognition.
2. The Respondent did not accede to the requests, and the Union reported a trade dispute to the Cabinet Secretary, Labour. The Cabinet Secretary appointed a Conciliator.
3. The Conciliator heard from the parties and issued a report indicating that the Union had met the simple majority threshold set out by section 54(1) of the Labour Relations Act for the grant of recognition.
4. Again, the Respondent did not yield, prompting the Union to move the Court on stating the Issue in Dispute as:
Failure to deduct and remit union dues, unlawful and victimisation of employees on account of unionisation.
5. At the same time, the Union filed a Motion seeking orders:
(i) …
(ii) THIS Honourable Court be pleased to prohibit and/or restrain the Respondent from victimising, harassing, or threatening to dismiss its employees who have joined the Claimant/applicant from employment pending the hearing and determination of this application and/or Cause.
(iii) THIS Honourable Court be pleased to compel the Respondent to deduct and remit union dues from the emoluments of all the Two Hundred and Fifty-Three (253) employees of the Respondent or any number thereof who have signed into the Claimant/applicant unions membership and remit the dues so deducted to the Claimant/applicant.
(iv) Costs of this application be borne by the Respondent.
6. The grounds in support of the Motion were that the Union had recruited 253 unionisable employees of the Respondent and forwarded the check-off forms; the Respondent had refused to deduct and remit union dues; the Respondent had threatened the employees who had joined the Union and that unless compelled by the Court, the Respondent would not comply with the request to deduct and remit union dues.
7. The Respondent’s Human Resource Manager filed a replying affidavit opposing the Motion on 23 January 2025.
8. The Manager deponed in the affidavit that the Court’s jurisdiction had been wrongly invoked because of failure to exhaust alternative dispute resolution avenues in place; the Union had not recruited a simple majority of the employees as only 139 out of 376 had joined the Union; some of the names had been duplicated; some of the employees had disowned the Union; that the Union had only 12 members from whom deductions had been made and remitted to the Union and that the Respondent was willing to grant the Union recognition once it met the threshold.
9. The Court took oral submissions from the parties on 1 April 2025.
10. The Court has considered the Motion, affidavits and submissions and can make the following determinations.
11. One, the Conciliator appointed by the Cabinet Secretary, Labour plays a statutory role within the context of the Labour Relations Act.
12. While playing the role, the Conciliator considers the facts and submissions from the parties.
13. In his report dated 30 June 2023, the Conciliator established certain facts and made recommendations.
14. Two, the Conciliator established that the mass rate at which the employees were leaving the Union indicated an alarming design and pattern which could only be attributed to a powerful influence to precipitate the employees to leave the Union.
15. The Respondent must have had a hand in the design of mass withdrawals from the Union.
16. Three, the Conciliators' report indicates that out of the 303 employees the Union had recruited, 156 were still in the employment of the Respondent at the time of the report.
17. Four, union subscriptions come from an employee’s wages, and once an employee gives written instructions to the employer, the employer should commence deductions and remit the same to the Union’s designated bank account within the prescribed timelines.
18. Last, the Court’s jurisdiction was not invoked prematurely since the Union only moved the Court after the Respondent declined to agree with the findings and recommendations of the Conciliator.
19. This Ruling could not be delivered on 12 June 2025 because of a technical challenge.
Conclusion and Orders
20. To do substantive justice without a to and fro by the parties, the Court orders:
(i) The Commissioner for Labour or his designate to conduct a census and establish the level of the Union's membership within the next 30 days.
(ii) The census to be conducted at the Respondent’s expense since it declined to accept the Conciliator’s report in the exercise of a statutory function.
(iii) The Commissioner for Labour to file a report within 60 days.
(iv) The Respondent to continue deducting and remitting to the Union members' subscriptions.
(v) The Respondent is prohibited from victimising, harassing or threatening its employees for exercising their constitutional right to join or participate in the activities of the Union.
21. Costs in the cause.
2. The Respondent did not accede to the requests, and the Union reported a trade dispute to the Cabinet Secretary, Labour. The Cabinet Secretary appointed a Conciliator.
3. The Conciliator heard from the parties and issued a report indicating that the Union had met the simple majority threshold set out by section 54(1) of the Labour Relations Act for the grant of recognition.
4. Again, the Respondent did not yield, prompting the Union to move the Court on stating the Issue in Dispute as:
Failure to deduct and remit union dues, unlawful and victimisation of employees on account of unionisation.
5. At the same time, the Union filed a Motion seeking orders:
(i) …
(ii) THIS Honourable Court be pleased to prohibit and/or restrain the Respondent from victimising, harassing, or threatening to dismiss its employees who have joined the Claimant/applicant from employment pending the hearing and determination of this application and/or Cause.
(iii) THIS Honourable Court be pleased to compel the Respondent to deduct and remit union dues from the emoluments of all the Two Hundred and Fifty-Three (253) employees of the Respondent or any number thereof who have signed into the Claimant/applicant unions membership and remit the dues so deducted to the Claimant/applicant.
(iv) Costs of this application be borne by the Respondent.
6. The grounds in support of the Motion were that the Union had recruited 253 unionisable employees of the Respondent and forwarded the check-off forms; the Respondent had refused to deduct and remit union dues; the Respondent had threatened the employees who had joined the Union and that unless compelled by the Court, the Respondent would not comply with the request to deduct and remit union dues.
7. The Respondent’s Human Resource Manager filed a replying affidavit opposing the Motion on 23 January 2025.
8. The Manager deponed in the affidavit that the Court’s jurisdiction had been wrongly invoked because of failure to exhaust alternative dispute resolution avenues in place; the Union had not recruited a simple majority of the employees as only 139 out of 376 had joined the Union; some of the names had been duplicated; some of the employees had disowned the Union; that the Union had only 12 members from whom deductions had been made and remitted to the Union and that the Respondent was willing to grant the Union recognition once it met the threshold.
9. The Court took oral submissions from the parties on 1 April 2025.
10. The Court has considered the Motion, affidavits and submissions and can make the following determinations.
11. One, the Conciliator appointed by the Cabinet Secretary, Labour plays a statutory role within the context of the Labour Relations Act.
12. While playing the role, the Conciliator considers the facts and submissions from the parties.
13. In his report dated 30 June 2023, the Conciliator established certain facts and made recommendations.
14. Two, the Conciliator established that the mass rate at which the employees were leaving the Union indicated an alarming design and pattern which could only be attributed to a powerful influence to precipitate the employees to leave the Union.
15. The Respondent must have had a hand in the design of mass withdrawals from the Union.
16. Three, the Conciliators' report indicates that out of the 303 employees the Union had recruited, 156 were still in the employment of the Respondent at the time of the report.
17. Four, union subscriptions come from an employee’s wages, and once an employee gives written instructions to the employer, the employer should commence deductions and remit the same to the Union’s designated bank account within the prescribed timelines.
18. Last, the Court’s jurisdiction was not invoked prematurely since the Union only moved the Court after the Respondent declined to agree with the findings and recommendations of the Conciliator.
19. This Ruling could not be delivered on 12 June 2025 because of a technical challenge.
Conclusion and Orders
20. To do substantive justice without a to and fro by the parties, the Court orders:
(i) The Commissioner for Labour or his designate to conduct a census and establish the level of the Union's membership within the next 30 days.
(ii) The census to be conducted at the Respondent’s expense since it declined to accept the Conciliator’s report in the exercise of a statutory function.
(iii) The Commissioner for Labour to file a report within 60 days.
(iv) The Respondent to continue deducting and remitting to the Union members' subscriptions.
(v) The Respondent is prohibited from victimising, harassing or threatening its employees for exercising their constitutional right to join or participate in the activities of the Union.
21. Costs in the cause.