1. The Cclaimant on the 4th January, 2024 filed suit against the Rrespondentss vide a Sstatement of Cclaim dated 20th December, 2023 supported by the Claimant’s Vverifying Aaffidavit sworn on even date seeking the following eight (8) reliefs:-
a) Declare that the 1st Respondent’s unionisable employees have a constitutional and fundamental right to join and participate in Trade union activities;
b) Declare that under Section 48 of the Labour Relations Act, 2007, the 1st respondent’s employees have a right to subscribe and pay their Trade Union membership fees to the Claimant, being their Trade union of choice;
c) Declare that the 2nd Respondent has no right whatsoever to force the 1st Respondent’s employees to transfer their services to them without the consent, agreement and concurrence of the said employees and as such their forceful involvement with the 1st Respondent’s employees are unlawful and is null and void;
d) Declare that the Claimant has achieved the requisite threshold necessary for signing Recognition Agreement and so order the first Respondent to sign the Draft Recognition Agreement within seven days of the date of Judgment and engage the Claimant in Collective Bargaining within thirty (30) days of the date of judgment;
e) Order the 2nd Respondent or any other Labour Outsourcing Company which has lawfully acquired the 1st respondent’s unionisable employees to append their signatures on the Draft Recognition Agreement and take over the said employees with the terms of the said agreements;
f) An order do issue directing the 1st Respondent to settle all past benefits of their employees before any such transfer, upon lawfully transferring the services of their employees to the 2nd Respondent or to any other outsourcing company;
g) Costs of this suit be granted to the Claimant in quantified amount as the Claimant acts by self and does not benefit from the Advocates Renumeration Order;
h) Order that this matter be mentioned after thirty(30) days of the Judgment to confirm compliance with the orders herein and to confirm that a Collective Bargaining Agreement has been concluded and presented for registration under the law;
i) The Honourable Court be pleased to issue any other order deemed fit and just to meet ends of justice.
2. The claim was filed together with the list of documents, a bundle of documents, a list of witnesses and the Claimant’s witness statement all dated 20th December 2023.
3. The Claim was filed alongside a Notice of Motion Application under a Certificate of Urgency dated 20th December, 2023 together with a Supporting Affidavit sworn by Mr. Vackson Khalumi on even date seeking the following Orders:
a) This Application be certified urgent and heard exparte in the first instance;
b) Pending interpartes hearing of this Application, this Honourable Court be pleased to issue an order restraining the Respondents individually or jointly from victimizing, coercing, disciplining, terminating, dismissing or in any way threatening the 1st Respondent’s Unionisable employees on account of their Trade Union membership;
c) Pending interpartes hearing of this Application, this Honourable Court be pleased to issue an order directing the 1st Respondent to deduct and remit Trade Union dues to the Claimant/Applicant from their employees who have already acknowledged their Trade Union membership with the Claimant/Applicant by signing the check off sheets as already served;
d) Pending hearing and determination of this suit, an order do issue restraining the 1st Respondent from unlawfully terminating the services of her employees forcefully and from transferring their services to the 2nd Respondent until all the past benefits of the said employees are settled in full;
e) Pending hearing and determination of his suit, this Honourable Court be pleased to issue an order restraining the 2nd Respondent from taking over employees of the 1st Respondent without the consent, concurrence and agreement of the said employees; and
f) Costs of this Application be awarded to the Claimant/Applicant.
4. On the 4th January, 2024, the Court heard the Application, certified the Application urgent and ordered service upon the Respondents within 3 days.
5. The 1st Respondent entered appearance through their Advocates Mukisu & Co Advocates on the 19th January, 2024. The 2nd Respondent appointed the firm of Athung’a & Co Advocates to represent them in the suit.
6. The 1st Respondent through its Advocates filed a Response to the Statement of Claim dated 26th January, 2024 and filed a Replying Affidavit to the said Application sworn by Mr. Chirag Kumar of even date.
7. The 2nd Respondent filed a Response to the Claimant’s Statement of Claim dated 26th January 2024 and filed a Replying Affidavit to the said Application sworn by Mr. Vincent Masinde of even date.
8. The Claimant subsequently filed another Witness Statement by Mr. Vickson Khalumi dated 12th March 2024.
HEARING AND EVIDENCE
9. The Cclaimant’s case was heard on the 25th June, 2024. Mr. Vackson Khalumi testified as CWI on behalf of the Claimant, produced as his evidence documents under the Claimant’s list of documents dated 20th December 2023 that were eventually adopted by the court as the claimant’s evidence and his witness statement dated on 12th March, 2024. CW1 was cross-examined by counsel for the Respondents, Mr. Mukisu for the 1st Respondent and Mr. Athung’a for the 2nd Respondent. The Claimant’s case was marked as closed.
10. The Respondents case was heard on the 25th September, 2024. Mr. Vincent Masinde testified as RWI on behalf of the 2nd Respondent, he produced his Replying Affidavit sworn on 26th January, 2024 which was adopted by the Court as his evidence in chief.
11. The 1st Respondent’s case was further heard on 30th September, 2024 wherein Mr. Chirag Kumar testified as RW2 on behalf of the 1st Respondent. RW2 had his Witness Statement dated 26th January, 2024 adopted as his evidence in chief. RW2 was cross-examined by counsel for the Claimant, Mr. Tacko. The Respondents’ case was marked as closed.
The Cclaimant’s case in summary
12. The Claimant in its Statement of Claim dated 20th December, 2023 avers that the 1st respondent’s employees registered their Trade Union membership with the Claimant between October and November, 2023. It was claimed that all 60 employees of the 1st Respondent signed the membership forms as such the Claimant achieved 100% membership beyond the threshold required for recognition purposes as stated in a letter dated 15th November, 2023.
13. The Claimant, vide letter dated 15th November 2023 sought to have a meeting with the 1st Respondent on 21st November 2023 to sign a Draft Recognition Agreement. The Claimant alleged that the 1st Respondent harassed and coerced its employees to exit the union which led to the Claimant cautioning the 1st Respondent vide a letter dated 23rd November, 2023.
14. The Claimant further alleged that the 1st Respondent instilled fear upon its employees and even terminated nine (9) of its employees from work. That the 1st Respondent is forcing its employees to be taken over by an outsourcing company, the 2nd Respondent, so that they can relinquish any relationship with those employees.
15. It is claimed that the victimization and attempts to bring an outsourcing company is meant to stifle and suppress Trade Union representation and is against the right of employees to associate with a Trade Union of their choice and the right of freedom of Association.
16. The Claimant’s case was heard on 25th June, 2024 where the Claimant’s witness Mr. Vackson Khalumi(CW 1) adopted his witness statement dated 12th March, 2024 as his evidence in chief. On cross-examination, CW1 stated that the union is registered and had registered 60 employees from the 1st respondent as members of the Trade Union. That the 1st respondent terminated the employment of a total number of 12 employees, however, there was no record showing their names before the Court.
17. The Claimant stated that there was no affidavit or statement filed by themselves to show that the employees were harassed by the 1st respondent. CW-1 testified that he physically witnessed an employee by the name Peter Simiyu being harassed by the 1st Respondent which incident he did not refer to in his Affidavit.
Respondents’ case in summary
1st Respondent’s case
18. On the 30th September, 2024, Mr. Chirag Kumar (RW2) Manager in Charge of the 1st Respondent’s operations, testified on behalf of the 1st Respondent stating that he opened his business in Bungoma in 2008. The workers for the 1st Respondent are outsourced by Maliwa Enterprises Limited ( the 2nd Respondent) since 2019. RW2 denied having a meeting with the claimant on 21st November 2022 or any other date claiming that there is no annexture or evidence substantiating the allegation.
19. RW2 denied threatening workers not to join the Union as he had no issue with them joining. Further, RW2 also denied sacking workers on account of joining the Union and stated that he did not prevent any worker from suing for their dues in court.
20. During cross-examination RW2 stated that he did not have the contract that they had with the 2nd Respondent to outsource workers for them. RW2 stated that the 1st Respondent did not terminate the employment of nine(9) workers. It was further stated that the employees did not sign the transfer contracts to the 2nd Respondent or their termination from the 1st Respondent.
21. On re-examination, RW2 testified that before the 2nd Respondent began outsourcing its employees, the 1st Respondent paid its employees benefits. RW2 clarified that the 1st Respondent did not employ the said employees therefore it could not terminate their employment and further he had not received any claim of pension from any employee.
The 2nd Respondent’s case
22. The 2nd Respondent's case was heard on the 25th of September, 2024. Mr. Vincent Masinde testified as RWI on behalf of the 2nd Respondent, he produced his Replying Affidavit sworn on 26th January 2024 which was adopted by the Court as his evidence in chief. In his Replying Affidavit, RW1 stated that the 2nd Respondent deals in construction and labour outsourcing and only outsources labour when it has construction work being performed by itself. Further, RW1 was not aware of any employees who had been transferred from the 1st Respondent to the 2nd Respondent. He averred that when outsourcing labour, it was difficult to know whether the person being engaged is employed elsewhere. RW1 denied the annexed “Attendance List” emanated from the 2nd Respondent and claims that it is forged reserving its rights to institute criminal proceedings against the Claimant. In summation, the 2nd Respondent contend that both the Application and claim are bad in law.
WRITTEN SUBMISSIONS
23. The parties filed written submissions to the Application and Claim all dated 20th December, 2023 after closure of the hearing. The claimant’s written submissions dated 16th October, 2024 were drawn and filed by the Claimant. The 1st respondent filed written submissions were dated 24th October 2024 and received in court on the 30th October 2024. The court did not receive submissions from the 2nd respondent.
DETERMINATION
Issues for determination
24. The Cclaimant in its written submissions raised the following four(4) issues for determination namely:
i. Whether the 1st Respondents should recognize the Claimant Union and deduct union dues,
ii. Whether the employees belong to the 1st or the 2nd Respondent
iii. Remedies available
iv. Cost
25. The 1st respondent submitted on the merits of the prayers sought in the claim.
26. The court having heard the parties' case, after considering the evidence was of the opinion that the issues placed before the court for determination were:-
i. Whether the employees recruited by the Claimant as its members belong to the 1st or the 2nd Respondent.
ii. Whether the 1st Respondent should recognize the Claimant Union and deduct union dues.
iii. Remedies.
Whether the employees recruited by the Claimant as its members belong to the 1st or the 2nd Respondent.
27. The claimant union claimed to have recruited all the 60 employees of the 1st Respondent who had signed check off forms hence 100% membership. The checkoff form sheets were produced as C- Exh 1. On the 15th of November 2023 the claimant sought a meeting with the 1st respondent for 21st November 2023 to sign the draft recognition agreement (C-Exh 3). That the 1st respondent started harassing the employees to quit the union and they wrote a letter on the same (C-Exh.4). That to intimidate the employees the Respondents terminated the services of the 9 employees and the matter was taken up with the Ministry of labour (C-Exh 5 was letter reporting trade dispute concerning 9 employees).
28. The claimant stated that the 1st respondent had started the process of forcing the employees to be taken over by an outsourcing company (2nd Respondent). That 2nd respondent had positioned itself at the shop purporting to manage the employees and forcing them to sign attendance sheets (C-Exh 6). That the outsourcing was meant to stifle or suppress the trade union representation.
29. The 1st Respondent through Chirag Kumar Prajapati(RW2) in replying affidavit sworn on the 26th January 2024 stated he was not aware whether any of his employees had joined the union. He stated that majority of its employees are seconded by the 2nd respondent.
30. The 2nd respondent vide affidavit of Vincent Masinde dated 26th January 2024 stated he was not aware of any employees who had been transferred from the 1st respondent to the 2nd respondent. That it only outsourced labour when it had construction work performed by itself. It denied the annexed attendance list emanated from it.
31. During the hearing CW1(Branch Secretary of the claimant) at cross-examination stated he recruited 60 employees in November 2023. He confirmed that since recruitment a total number of 12 had been terminated. He did not know the names of the employees terminated. He was aware since early 2024 the 1st respondent had outsourced employees.
32. During cross-examination by Mr. Athunga for 2nd respondent, CW1 stated the names of the persons in the attendance list were employees of the 1st respondent at the time of recruitment of members by the claimant(C-Exh 6). That the list of attendance was issued to them by the 1st respondent.
33. RW2 told the court the workers of the 1st respondent were outsourced by the 2nd respondent since 2019. That he had no issue with the workers joining union and that their employees issues including payment was by the 2nd Respondent.
34. During cross-examination by Tacko for the claimant RW2 stated he had no evidence of having contracted the 2nd respondent for outsourcing. He denied the allegation that the union asked for a meeting or to having sacked the 9 workers. He told the court that his workers had not signed termination letter on transfer to 2nd respondent but they lost their benefits. On re-exam he said that he paid benefits to his workers before outsourcing to the 2nd Respondent.
35. Taking into account the foregoing, the Court finds that the workers who were members of the claimant as per the signed check-off forms were employees of the 1st respondent. There was no evidence before the court of transiting the employees as alleged to the 2nd respondent and indeed in the replying affidavit, paragraph 4 of Vincent Masinde (RW1) he was not aware of employees who were transferred from the 1st respondent to the 2nd respondent. The court found that the alleged outsourcing was just a gimmick to defeat the unionization of the employees by the 1st respondent.
Whether the 1st Respondent should deduct union dues and recognize the Claimant Union
36. The claimant’s evidence vide C-Exh 2( signed check-off forms) was uncontroverted evidence of the recruitment of employees of the 1st respondent as members of the union. Section 19(1)(f)(g) of the Employment Act authorizes deduction of wages as follows:-‘’ any amount the deduction of which is authorised by any written law for the time being in force, collective agreement, wage determination, court order or arbitration award;
(g) any amount in which the employer has no direct or indirect beneficial interest, and which the employee has requested the employer in writing to deduct from his wages;’’
37. On deduction of union dues , Section 48(3) of the Labour Relations Act requires an employer in respect of whom the minister has issued an order for deduction of wages to commence deducting the trade union dues 30 days of the trade union servicing notice in FORM S (check off)signed by the employees in respect of which the employer is required to make deductions. The court finds the claimant complied with the provisions of section 48 of the Act and produced the signed check-off forms in compliance. The 1st respondent on receipt of the forms had no other role other than to make deductions as instructed.
38. On recognition, Section 54(1) of the Labour Relations Act reads, ‘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 the unionisable employees’’ The evidence of the claimant that it had recruited 100% of the employees of the 1st respondent was not controverted. During the hearing, it emerged that 12 of the employees had since left employment through termination. The Court found that the right of the union to recognition was not affected by the terminations for they happened after the recruitment. Further the Court of Appeal in Absyssinia Iron & Steel Limited v Kenya Engineering Workers Union (2016)e KLR held; ‘to be recognised as the representative trade union of the workers of a person or entity , section 54 of the Labour Relations Act stipulates that the minimum number of workers willing to join the Union must be a simple majority or 51% of the workforce.’’ The recruited members were still beyond 51 % of the workforce.
39. The court holds that the claimant union had qualified to be recognised by the 1st respondent.
Whether the claimant was entitled to reliefs sought
40. The claimant sought various prayers.
Prayers a,b and c
a. Declare that the 1st Respondent’s unionisable employees have a constitutional and fundamental right to join and participate in Trade union activities;
b. Declare that under Section 48 of the Labour Relations Act, 2007, the 1st respondent’s employees have a right to subscribe and pay their Trade Union membership fees to the Claimant, being their Trade union of choice;
c. Declare that the 2nd Respondent has no right whatsoever to force the 1st Respondent’s employees to transfer their services to them without the consent, agreement and concurrence of the said employees and as such their forceful involvement with the 1st Respondent’s employees are unlawful and is null and void;
41. On the three prayers, the court already made findings on the same. There was no evidence before the court of the employees of the 1st respondent having been transferred to the 2nd Respondent. The trade dispute reported was on termination and not on transfer.
Prayer d
d. Declare that the Claimant has achieved the requisite threshold necessary for signing Recognition Agreement and so order the first Respondent to sign the Draft Recognition Agreement within seven days of the date of Judgment and engage the Claimant in Collective Bargaining within thirty (30) days of the date of judgment.
42. The court held that the claimant had met the threshold to be recognised by the 1st respondent. The 1st respondent to sign the draft recognition agreement in 21 days of the date of Judgment and engage the Claimant in Collective Bargaining within thirty (30) days of the date of judgment.
Prayer v
Order the 2nd Respondent or any other Labour Outsourcing Company which has lawfully acquired the 1st respondent’s unionisable employees to append their signatures on the Draft Recognition Agreement and take over the said employees with the terms of the said agreements and An order do issue directing the 1st Respondent to settle all past benefits of their employees before any such transfer, upon lawfully transferring the services of their employees to the 2nd Respondent or to any other outsourcing company;
43. The court found no evidence of transfer of employees of the 1st respondent to the 2nd respondent. The court finds that any such move would be governed by the contract between the parties and the employees. There was no complaint by any employee before the court.
CONCLUSION
44. The court enters judgment in favour of the claimant against the 1st respondent as follows:-
a. The 1st respondent is ordered to make deductions of union dues and remit to the claimant according to the check-off forms signed by the employees.
b. The claimant union met the threshold to be recognised by the 1st respondent. The 1st respondent to sign the draft recognition agreement in 21 days of the date of Judgment and engage the Claimant in Collective Bargaining within thirty (30) days of the date of judgment.
c. The court makes no order as to costs in the claim.
45. It is so Ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 22nd DAY OF JANUARY , 2025.
a) Declare that the 1st Respondent’s unionisable employees have a constitutional and fundamental right to join and participate in Trade union activities;
b) Declare that under Section 48 of the Labour Relations Act, 2007, the 1st respondent’s employees have a right to subscribe and pay their Trade Union membership fees to the Claimant, being their Trade union of choice;
c) Declare that the 2nd Respondent has no right whatsoever to force the 1st Respondent’s employees to transfer their services to them without the consent, agreement and concurrence of the said employees and as such their forceful involvement with the 1st Respondent’s employees are unlawful and is null and void;
d) Declare that the Claimant has achieved the requisite threshold necessary for signing Recognition Agreement and so order the first Respondent to sign the Draft Recognition Agreement within seven days of the date of Judgment and engage the Claimant in Collective Bargaining within thirty (30) days of the date of judgment;
e) Order the 2nd Respondent or any other Labour Outsourcing Company which has lawfully acquired the 1st respondent’s unionisable employees to append their signatures on the Draft Recognition Agreement and take over the said employees with the terms of the said agreements;
f) An order do issue directing the 1st Respondent to settle all past benefits of their employees before any such transfer, upon lawfully transferring the services of their employees to the 2nd Respondent or to any other outsourcing company;
g) Costs of this suit be granted to the Claimant in quantified amount as the Claimant acts by self and does not benefit from the Advocates Renumeration Order;
h) Order that this matter be mentioned after thirty(30) days of the Judgment to confirm compliance with the orders herein and to confirm that a Collective Bargaining Agreement has been concluded and presented for registration under the law;
i) The Honourable Court be pleased to issue any other order deemed fit and just to meet ends of justice.
2. The claim was filed together with the list of documents, a bundle of documents, a list of witnesses and the Claimant’s witness statement all dated 20th December 2023.
3. The Claim was filed alongside a Notice of Motion Application under a Certificate of Urgency dated 20th December, 2023 together with a Supporting Affidavit sworn by Mr. Vackson Khalumi on even date seeking the following Orders:
a) This Application be certified urgent and heard exparte in the first instance;
b) Pending interpartes hearing of this Application, this Honourable Court be pleased to issue an order restraining the Respondents individually or jointly from victimizing, coercing, disciplining, terminating, dismissing or in any way threatening the 1st Respondent’s Unionisable employees on account of their Trade Union membership;
c) Pending interpartes hearing of this Application, this Honourable Court be pleased to issue an order directing the 1st Respondent to deduct and remit Trade Union dues to the Claimant/Applicant from their employees who have already acknowledged their Trade Union membership with the Claimant/Applicant by signing the check off sheets as already served;
d) Pending hearing and determination of this suit, an order do issue restraining the 1st Respondent from unlawfully terminating the services of her employees forcefully and from transferring their services to the 2nd Respondent until all the past benefits of the said employees are settled in full;
e) Pending hearing and determination of his suit, this Honourable Court be pleased to issue an order restraining the 2nd Respondent from taking over employees of the 1st Respondent without the consent, concurrence and agreement of the said employees; and
f) Costs of this Application be awarded to the Claimant/Applicant.
4. On the 4th January, 2024, the Court heard the Application, certified the Application urgent and ordered service upon the Respondents within 3 days.
5. The 1st Respondent entered appearance through their Advocates Mukisu & Co Advocates on the 19th January, 2024. The 2nd Respondent appointed the firm of Athung’a & Co Advocates to represent them in the suit.
6. The 1st Respondent through its Advocates filed a Response to the Statement of Claim dated 26th January, 2024 and filed a Replying Affidavit to the said Application sworn by Mr. Chirag Kumar of even date.
7. The 2nd Respondent filed a Response to the Claimant’s Statement of Claim dated 26th January 2024 and filed a Replying Affidavit to the said Application sworn by Mr. Vincent Masinde of even date.
8. The Claimant subsequently filed another Witness Statement by Mr. Vickson Khalumi dated 12th March 2024.
HEARING AND EVIDENCE
9. The Cclaimant’s case was heard on the 25th June, 2024. Mr. Vackson Khalumi testified as CWI on behalf of the Claimant, produced as his evidence documents under the Claimant’s list of documents dated 20th December 2023 that were eventually adopted by the court as the claimant’s evidence and his witness statement dated on 12th March, 2024. CW1 was cross-examined by counsel for the Respondents, Mr. Mukisu for the 1st Respondent and Mr. Athung’a for the 2nd Respondent. The Claimant’s case was marked as closed.
10. The Respondents case was heard on the 25th September, 2024. Mr. Vincent Masinde testified as RWI on behalf of the 2nd Respondent, he produced his Replying Affidavit sworn on 26th January, 2024 which was adopted by the Court as his evidence in chief.
11. The 1st Respondent’s case was further heard on 30th September, 2024 wherein Mr. Chirag Kumar testified as RW2 on behalf of the 1st Respondent. RW2 had his Witness Statement dated 26th January, 2024 adopted as his evidence in chief. RW2 was cross-examined by counsel for the Claimant, Mr. Tacko. The Respondents’ case was marked as closed.
The Cclaimant’s case in summary
12. The Claimant in its Statement of Claim dated 20th December, 2023 avers that the 1st respondent’s employees registered their Trade Union membership with the Claimant between October and November, 2023. It was claimed that all 60 employees of the 1st Respondent signed the membership forms as such the Claimant achieved 100% membership beyond the threshold required for recognition purposes as stated in a letter dated 15th November, 2023.
13. The Claimant, vide letter dated 15th November 2023 sought to have a meeting with the 1st Respondent on 21st November 2023 to sign a Draft Recognition Agreement. The Claimant alleged that the 1st Respondent harassed and coerced its employees to exit the union which led to the Claimant cautioning the 1st Respondent vide a letter dated 23rd November, 2023.
14. The Claimant further alleged that the 1st Respondent instilled fear upon its employees and even terminated nine (9) of its employees from work. That the 1st Respondent is forcing its employees to be taken over by an outsourcing company, the 2nd Respondent, so that they can relinquish any relationship with those employees.
15. It is claimed that the victimization and attempts to bring an outsourcing company is meant to stifle and suppress Trade Union representation and is against the right of employees to associate with a Trade Union of their choice and the right of freedom of Association.
16. The Claimant’s case was heard on 25th June, 2024 where the Claimant’s witness Mr. Vackson Khalumi(CW 1) adopted his witness statement dated 12th March, 2024 as his evidence in chief. On cross-examination, CW1 stated that the union is registered and had registered 60 employees from the 1st respondent as members of the Trade Union. That the 1st respondent terminated the employment of a total number of 12 employees, however, there was no record showing their names before the Court.
17. The Claimant stated that there was no affidavit or statement filed by themselves to show that the employees were harassed by the 1st respondent. CW-1 testified that he physically witnessed an employee by the name Peter Simiyu being harassed by the 1st Respondent which incident he did not refer to in his Affidavit.
Respondents’ case in summary
1st Respondent’s case
18. On the 30th September, 2024, Mr. Chirag Kumar (RW2) Manager in Charge of the 1st Respondent’s operations, testified on behalf of the 1st Respondent stating that he opened his business in Bungoma in 2008. The workers for the 1st Respondent are outsourced by Maliwa Enterprises Limited ( the 2nd Respondent) since 2019. RW2 denied having a meeting with the claimant on 21st November 2022 or any other date claiming that there is no annexture or evidence substantiating the allegation.
19. RW2 denied threatening workers not to join the Union as he had no issue with them joining. Further, RW2 also denied sacking workers on account of joining the Union and stated that he did not prevent any worker from suing for their dues in court.
20. During cross-examination RW2 stated that he did not have the contract that they had with the 2nd Respondent to outsource workers for them. RW2 stated that the 1st Respondent did not terminate the employment of nine(9) workers. It was further stated that the employees did not sign the transfer contracts to the 2nd Respondent or their termination from the 1st Respondent.
21. On re-examination, RW2 testified that before the 2nd Respondent began outsourcing its employees, the 1st Respondent paid its employees benefits. RW2 clarified that the 1st Respondent did not employ the said employees therefore it could not terminate their employment and further he had not received any claim of pension from any employee.
The 2nd Respondent’s case
22. The 2nd Respondent's case was heard on the 25th of September, 2024. Mr. Vincent Masinde testified as RWI on behalf of the 2nd Respondent, he produced his Replying Affidavit sworn on 26th January 2024 which was adopted by the Court as his evidence in chief. In his Replying Affidavit, RW1 stated that the 2nd Respondent deals in construction and labour outsourcing and only outsources labour when it has construction work being performed by itself. Further, RW1 was not aware of any employees who had been transferred from the 1st Respondent to the 2nd Respondent. He averred that when outsourcing labour, it was difficult to know whether the person being engaged is employed elsewhere. RW1 denied the annexed “Attendance List” emanated from the 2nd Respondent and claims that it is forged reserving its rights to institute criminal proceedings against the Claimant. In summation, the 2nd Respondent contend that both the Application and claim are bad in law.
WRITTEN SUBMISSIONS
23. The parties filed written submissions to the Application and Claim all dated 20th December, 2023 after closure of the hearing. The claimant’s written submissions dated 16th October, 2024 were drawn and filed by the Claimant. The 1st respondent filed written submissions were dated 24th October 2024 and received in court on the 30th October 2024. The court did not receive submissions from the 2nd respondent.
DETERMINATION
Issues for determination
24. The Cclaimant in its written submissions raised the following four(4) issues for determination namely:
i. Whether the 1st Respondents should recognize the Claimant Union and deduct union dues,
ii. Whether the employees belong to the 1st or the 2nd Respondent
iii. Remedies available
iv. Cost
25. The 1st respondent submitted on the merits of the prayers sought in the claim.
26. The court having heard the parties' case, after considering the evidence was of the opinion that the issues placed before the court for determination were:-
i. Whether the employees recruited by the Claimant as its members belong to the 1st or the 2nd Respondent.
ii. Whether the 1st Respondent should recognize the Claimant Union and deduct union dues.
iii. Remedies.
Whether the employees recruited by the Claimant as its members belong to the 1st or the 2nd Respondent.
27. The claimant union claimed to have recruited all the 60 employees of the 1st Respondent who had signed check off forms hence 100% membership. The checkoff form sheets were produced as C- Exh 1. On the 15th of November 2023 the claimant sought a meeting with the 1st respondent for 21st November 2023 to sign the draft recognition agreement (C-Exh 3). That the 1st respondent started harassing the employees to quit the union and they wrote a letter on the same (C-Exh.4). That to intimidate the employees the Respondents terminated the services of the 9 employees and the matter was taken up with the Ministry of labour (C-Exh 5 was letter reporting trade dispute concerning 9 employees).
28. The claimant stated that the 1st respondent had started the process of forcing the employees to be taken over by an outsourcing company (2nd Respondent). That 2nd respondent had positioned itself at the shop purporting to manage the employees and forcing them to sign attendance sheets (C-Exh 6). That the outsourcing was meant to stifle or suppress the trade union representation.
29. The 1st Respondent through Chirag Kumar Prajapati(RW2) in replying affidavit sworn on the 26th January 2024 stated he was not aware whether any of his employees had joined the union. He stated that majority of its employees are seconded by the 2nd respondent.
30. The 2nd respondent vide affidavit of Vincent Masinde dated 26th January 2024 stated he was not aware of any employees who had been transferred from the 1st respondent to the 2nd respondent. That it only outsourced labour when it had construction work performed by itself. It denied the annexed attendance list emanated from it.
31. During the hearing CW1(Branch Secretary of the claimant) at cross-examination stated he recruited 60 employees in November 2023. He confirmed that since recruitment a total number of 12 had been terminated. He did not know the names of the employees terminated. He was aware since early 2024 the 1st respondent had outsourced employees.
32. During cross-examination by Mr. Athunga for 2nd respondent, CW1 stated the names of the persons in the attendance list were employees of the 1st respondent at the time of recruitment of members by the claimant(C-Exh 6). That the list of attendance was issued to them by the 1st respondent.
33. RW2 told the court the workers of the 1st respondent were outsourced by the 2nd respondent since 2019. That he had no issue with the workers joining union and that their employees issues including payment was by the 2nd Respondent.
34. During cross-examination by Tacko for the claimant RW2 stated he had no evidence of having contracted the 2nd respondent for outsourcing. He denied the allegation that the union asked for a meeting or to having sacked the 9 workers. He told the court that his workers had not signed termination letter on transfer to 2nd respondent but they lost their benefits. On re-exam he said that he paid benefits to his workers before outsourcing to the 2nd Respondent.
35. Taking into account the foregoing, the Court finds that the workers who were members of the claimant as per the signed check-off forms were employees of the 1st respondent. There was no evidence before the court of transiting the employees as alleged to the 2nd respondent and indeed in the replying affidavit, paragraph 4 of Vincent Masinde (RW1) he was not aware of employees who were transferred from the 1st respondent to the 2nd respondent. The court found that the alleged outsourcing was just a gimmick to defeat the unionization of the employees by the 1st respondent.
Whether the 1st Respondent should deduct union dues and recognize the Claimant Union
36. The claimant’s evidence vide C-Exh 2( signed check-off forms) was uncontroverted evidence of the recruitment of employees of the 1st respondent as members of the union. Section 19(1)(f)(g) of the Employment Act authorizes deduction of wages as follows:-‘’ any amount the deduction of which is authorised by any written law for the time being in force, collective agreement, wage determination, court order or arbitration award;
(g) any amount in which the employer has no direct or indirect beneficial interest, and which the employee has requested the employer in writing to deduct from his wages;’’
37. On deduction of union dues , Section 48(3) of the Labour Relations Act requires an employer in respect of whom the minister has issued an order for deduction of wages to commence deducting the trade union dues 30 days of the trade union servicing notice in FORM S (check off)signed by the employees in respect of which the employer is required to make deductions. The court finds the claimant complied with the provisions of section 48 of the Act and produced the signed check-off forms in compliance. The 1st respondent on receipt of the forms had no other role other than to make deductions as instructed.
38. On recognition, Section 54(1) of the Labour Relations Act reads, ‘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 the unionisable employees’’ The evidence of the claimant that it had recruited 100% of the employees of the 1st respondent was not controverted. During the hearing, it emerged that 12 of the employees had since left employment through termination. The Court found that the right of the union to recognition was not affected by the terminations for they happened after the recruitment. Further the Court of Appeal in Absyssinia Iron & Steel Limited v Kenya Engineering Workers Union (2016)e KLR held; ‘to be recognised as the representative trade union of the workers of a person or entity , section 54 of the Labour Relations Act stipulates that the minimum number of workers willing to join the Union must be a simple majority or 51% of the workforce.’’ The recruited members were still beyond 51 % of the workforce.
39. The court holds that the claimant union had qualified to be recognised by the 1st respondent.
Whether the claimant was entitled to reliefs sought
40. The claimant sought various prayers.
Prayers a,b and c
a. Declare that the 1st Respondent’s unionisable employees have a constitutional and fundamental right to join and participate in Trade union activities;
b. Declare that under Section 48 of the Labour Relations Act, 2007, the 1st respondent’s employees have a right to subscribe and pay their Trade Union membership fees to the Claimant, being their Trade union of choice;
c. Declare that the 2nd Respondent has no right whatsoever to force the 1st Respondent’s employees to transfer their services to them without the consent, agreement and concurrence of the said employees and as such their forceful involvement with the 1st Respondent’s employees are unlawful and is null and void;
41. On the three prayers, the court already made findings on the same. There was no evidence before the court of the employees of the 1st respondent having been transferred to the 2nd Respondent. The trade dispute reported was on termination and not on transfer.
Prayer d
d. Declare that the Claimant has achieved the requisite threshold necessary for signing Recognition Agreement and so order the first Respondent to sign the Draft Recognition Agreement within seven days of the date of Judgment and engage the Claimant in Collective Bargaining within thirty (30) days of the date of judgment.
42. The court held that the claimant had met the threshold to be recognised by the 1st respondent. The 1st respondent to sign the draft recognition agreement in 21 days of the date of Judgment and engage the Claimant in Collective Bargaining within thirty (30) days of the date of judgment.
Prayer v
Order the 2nd Respondent or any other Labour Outsourcing Company which has lawfully acquired the 1st respondent’s unionisable employees to append their signatures on the Draft Recognition Agreement and take over the said employees with the terms of the said agreements and An order do issue directing the 1st Respondent to settle all past benefits of their employees before any such transfer, upon lawfully transferring the services of their employees to the 2nd Respondent or to any other outsourcing company;
43. The court found no evidence of transfer of employees of the 1st respondent to the 2nd respondent. The court finds that any such move would be governed by the contract between the parties and the employees. There was no complaint by any employee before the court.
CONCLUSION
44. The court enters judgment in favour of the claimant against the 1st respondent as follows:-
a. The 1st respondent is ordered to make deductions of union dues and remit to the claimant according to the check-off forms signed by the employees.
b. The claimant union met the threshold to be recognised by the 1st respondent. The 1st respondent to sign the draft recognition agreement in 21 days of the date of Judgment and engage the Claimant in Collective Bargaining within thirty (30) days of the date of judgment.
c. The court makes no order as to costs in the claim.
45. It is so Ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 22nd DAY OF JANUARY , 2025.