1. The Kenya Union of Road Contractors & Civil Engineering Workers (the Union) sued Cale Infrastructure Construction Co Ltd (the Respondent) on 17 May 2023, and it stated the Issue in Dispute as:
(a) Failure to deduct and remit union dues.
(b) Wrongful termination of employment of George Onyango Minene I.D. 32533191.
2. At the same time, the Union filed a Motion seeking orders:
(a) …
(b) THAT this Honourable Court be pleased to issue an order compelling the Respondent to deduct and remit union dues immediately pending hearing and determination of this application.
(c) THAT the Respondent be ordered to pay the Complainant the terminal benefits.
(d) THAT costs of this application be provided for.
3. The grounds in support of the Motion were that the Respondent had deliberately refused to deduct and remit union dues to the Union; the Respondent had declined to engage in negotiations to resolve the dispute and the Respondent was in violation of Article 41 of the Constitution and sections 4 and 48 of the Labour Relations Act.
4. When the Motion was placed before the Court on 24 May 2023, it declined to certify it as urgent. The Union was directed to serve the Respondent.
5. The Court gave directions on 12 March 2025 and 6 May 2025.
6. The Respondent caused to be filed a replying affidavit on 24 March 2025, deponing that the Motion was fatally defective; the Motion sought orders on behalf of a person unknown to it; the Motion was premature and that employees who had joined the Union had left employment.
7. The Union filed a further affidavit on 11 April 2025, asserting that the complainant had not been paid terminal dues; the Respondent had been served with check-off forms listing 193 members in 2021, but it had deducted union dues from 8 employees only and that the Respondent had not met with the employees to discuss redundancies.
8. The Respondent filed its submissions on 22 April 2025.
9. The Union brought a hard copy of its submissions to the Court on 4 June 2025, after receiving an email from the Court bringing forward the delivery of the Ruling to 5 June 2025 (the Union submissions were not on record by the agreed timeline of 11 April 2025). The submissions are not filed through the e-filing system nor is there a record of payment. The Court expunges them from the record.
10. The Court has considered the record, Motion, affidavits and submissions and makes the following determinations.
11. One, the Union mixed causes of action that should not have been advanced together, i.e. breach of contract or unfair termination of the employment of one George Onyango Minene and dispute over its organisational rights.
12. The dispute on unfair termination of employment/breach of contract is therefore incompetent.
13. Two, the Union pleaded that the Respondent was engaged in a specific project, the construction of the Nairobi Expressway and the Respondent confirmed as much in paragraph 4 of its Response.
14. Without and before interrogating the facts to establish whether the Nairobi Expressway project was concluded and the employees released, the Court would be making orders in vain.
15. Lastly, the question whether one George Onyango Minene is entitled to terminal benefits can only be determined after a hearing on the merits.
16. Before concluding, the Court notes that the delivery of this Ruling was brought backwards with notice to the parties because the Court will not sit on 26 June 2025.
Orders
17. Flowing from the above, the Court orders:
(a) The action relating to unfair termination of employment or breach of contract is incompetent and is struck out. The Union is at liberty to institute a fresh action if limitation allows.
(b) The orders sought in the Motion dated 15 May 2023 are declined.
18. Costs in the Respondents.
(a) Failure to deduct and remit union dues.
(b) Wrongful termination of employment of George Onyango Minene I.D. 32533191.
2. At the same time, the Union filed a Motion seeking orders:
(a) …
(b) THAT this Honourable Court be pleased to issue an order compelling the Respondent to deduct and remit union dues immediately pending hearing and determination of this application.
(c) THAT the Respondent be ordered to pay the Complainant the terminal benefits.
(d) THAT costs of this application be provided for.
3. The grounds in support of the Motion were that the Respondent had deliberately refused to deduct and remit union dues to the Union; the Respondent had declined to engage in negotiations to resolve the dispute and the Respondent was in violation of Article 41 of the Constitution and sections 4 and 48 of the Labour Relations Act.
4. When the Motion was placed before the Court on 24 May 2023, it declined to certify it as urgent. The Union was directed to serve the Respondent.
5. The Court gave directions on 12 March 2025 and 6 May 2025.
6. The Respondent caused to be filed a replying affidavit on 24 March 2025, deponing that the Motion was fatally defective; the Motion sought orders on behalf of a person unknown to it; the Motion was premature and that employees who had joined the Union had left employment.
7. The Union filed a further affidavit on 11 April 2025, asserting that the complainant had not been paid terminal dues; the Respondent had been served with check-off forms listing 193 members in 2021, but it had deducted union dues from 8 employees only and that the Respondent had not met with the employees to discuss redundancies.
8. The Respondent filed its submissions on 22 April 2025.
9. The Union brought a hard copy of its submissions to the Court on 4 June 2025, after receiving an email from the Court bringing forward the delivery of the Ruling to 5 June 2025 (the Union submissions were not on record by the agreed timeline of 11 April 2025). The submissions are not filed through the e-filing system nor is there a record of payment. The Court expunges them from the record.
10. The Court has considered the record, Motion, affidavits and submissions and makes the following determinations.
11. One, the Union mixed causes of action that should not have been advanced together, i.e. breach of contract or unfair termination of the employment of one George Onyango Minene and dispute over its organisational rights.
12. The dispute on unfair termination of employment/breach of contract is therefore incompetent.
13. Two, the Union pleaded that the Respondent was engaged in a specific project, the construction of the Nairobi Expressway and the Respondent confirmed as much in paragraph 4 of its Response.
14. Without and before interrogating the facts to establish whether the Nairobi Expressway project was concluded and the employees released, the Court would be making orders in vain.
15. Lastly, the question whether one George Onyango Minene is entitled to terminal benefits can only be determined after a hearing on the merits.
16. Before concluding, the Court notes that the delivery of this Ruling was brought backwards with notice to the parties because the Court will not sit on 26 June 2025.
Orders
17. Flowing from the above, the Court orders:
(a) The action relating to unfair termination of employment or breach of contract is incompetent and is struck out. The Union is at liberty to institute a fresh action if limitation allows.
(b) The orders sought in the Motion dated 15 May 2023 are declined.
18. Costs in the Respondents.