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ELRCDismissedNot stated in extract (Statement of Claim; Respondent's Statement of Response and Counterclaim dated 26th March 2024)

Kenya Union of Entertainment & Music Industry Employees v Kenya Cultural Centre (Cause E168 of 2024) [2025] KEELRC 641 (KLR)

Employment and Labour Relations Court
28 February 2025
3,758 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a union's claim for dues and agency fees because employees had resigned in writing and the CBA had expired in 2010.

What this practically means

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Executive summary

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In a first-instance employment and labour relations dispute, a trade union claiming 28 members employed by the Respondent sued over the Respondent's unilateral variation and cessation of trade union dues deductions (from 3% of gross salaries to Kshs 600, then to nothing from April 2022), and sought accrued agency fees on the basis of a CBA the union asserted was still in force. The Respondent denied the claim, asserting that 19 employees validly withdrew from the union between March and April 2022, five others had separated from employment, and that the CBA expired on 31st December 2010 with no continuation clause; it counterclaimed for repayment of Kshs 126,990 in agency fees deducted under protest from 9 non-members. The court framed five issues. It held the union failed to prove current membership: the union's Secretary General admitted receiving withdrawal letters, and under Section 48(6) of the Labour Relations Act an employer may not deduct dues from an employee who has notified it in writing of resignation. On the CBA, applying Clause 21 and the principle that courts do not rewrite contracts, and relying on Section 59(1) and Mukiria Farmers, the court held the CBA ran strictly for 24 months and lapsed on 31st December 2010. Agency fees, payable only for benefits derived from a CBA, were therefore not claimable; the union would be entitled only upon negotiation of a new CBA. The Counterclaim failed because the agency fees were deducted under a Cabinet Secretary's order in Gazette Notice No. 14364 of 12th October 2012 and were not recoverable. Both the Claim and Counterclaim were dismissed, each party bearing its own costs of the Claim, with no orders as to costs on the Counterclaim.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Claimant has proved that it has members who are employees of the Respondent and hence entitled to trade unions dues deductions from the said employees
  2. 2.Whether the CBA registered under RCA No. 92 of 2009 is still in force
  3. 3.Depending on (b) whether the Claimant is entitled to agency fees
  4. 4.Whether the Claimant is entitled to the reliefs sought
  5. 5.Is the Counterclaim merited?

Key legal issues

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01

Whether the Claimant proved existing union membership among the Respondent's employees

Holding

The Claimant failed to prove membership; 19 employees withdrew and 5 separated from employment, and deduction of dues had to stop.

Reasoning

The Claimant's claim was global, referencing 28 members with no names or personnel numbers. CW1 admitted receipt of the withdrawal letters, discounting the claim of no notice. Under Section 48(6) of the Labour Relations Act, an employer may not deduct dues from an employee who has notified it in writing of resignation from the union. The Respondent was therefore barred from continuing deductions.

p. 6
02

Whether the CBA registered under RCA No. 92 of 2009 remained in force

Holding

The CBA ran for 24 months from 1st January 2009 and lapsed on 31st December 2010; it is no longer in force.

Reasoning

Clause 21 fixed the effective date as 1st January 2009 with a total period of twenty-four months. The court applied the maxim that courts do not rewrite contracts, and Section 59(1) of the Labour Relations Act that a collective agreement binds for the period of the agreement, as reaffirmed in Mukiria Farmers. Had the parties intended continuation, they would have said so expressly.

p. 7
03

Whether the Claimant is entitled to agency fees

Holding

No entitlement to agency fees as the CBA has lapsed; entitlement would arise only upon negotiation of a new CBA.

Reasoning

Agency fees are paid for benefits derived from a CBA. Since the CBA ceased to be in force after 31st December 2010, no claim for agency fees lies. The Claimant also did not dispute that the CBA terms had become obsolete and inferior to current terms of engagement, with negotiated basic salaries falling below the prescribed minimum wage.

p. 7
04

Whether the Respondent's Counterclaim for repayment of Kshs 126,990 in agency fees is merited

Holding

Counterclaim declined because the deductions were made on the basis of a valid gazette notice.

Reasoning

Gazette notice no 14364 of 12th October 2012 recorded an order by the Cabinet Secretary authorising deduction of agency fees from unionisable employees covered by the CBA. Since the deductions were effected on the strength of that gazette notice, the amounts deducted were not recoverable, and the Counterclaim failed.

p. 7

Legal principles established

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  • Upon written notice of resignation from a union, an employer may not deduct trade union dues.
  • A collective agreement binds only for the period of the agreement.
  • Courts cannot rewrite contracts between parties; parties are bound by the terms of their contracts.

Court orders

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  1. 1.The Claim is dismissed
  2. 2.Each party shall bear their own costs of the Claim
  3. 3.The Counterclaim is dismissed with no orders as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade union dues, CBA and agency fees disputes (Section 48 of the Labour Relations Act, 2007 invoked by the parties)

Relief refused

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Payment of trade union dues at 3% of gross salaries from April 2022 by the Respondent from its own kitty

Employees validly withdrew from the union and Section 48(6) barred further deductions

p. 6

An order compelling the Respondent to continue deducting trade union dues at 3%

Claimant failed to prove it still had members employed by the Respondent

p. 6

Payment of 12-month dues differences between 3% and Kshs 600

Claim dismissed for lack of merit

p. 8

Alternative relief for accrued agency fees

The CBA lapsed on 31st December 2010 and no longer confers benefits

p. 7

Costs

Each party shall bear their own costs of the Claim; the Counterclaim is dismissed with no orders as to costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For the foregoing reasons, the Court finds and holds that the Claim is without merit and is consequently dismissed with an order that each party shall bear their own costs. The Counterclaim is similarly dismissed with no orders as to costs.
p. 8Final orders - dismissal of claim and counterclaim
the CBA was strictly for twenty four months and no more. As such, the CBA lapsed on 31st December 2010 and thereafter, ceased to be in force.
p. 7Duration and expiry of a CBA
An employer may not make any deduction from an employee who has notified the employer in writing that the employee has resigned from the union.
p. 6Section 48(6) Labour Relations Act - effect of resignation on dues deductions
Accordingly, the Claimant will only be entitled to agency fees upon negotiation of a new CBA.
p. 7Agency fees conditional on a live CBA
it is not the business of courts to rewrite contracts between parties. They are bound by the terms of their contracts, unless coercion, fraud or undue influence are pleaded and proved.
p. 7Binding nature of contractual terms

Issues in the judgment

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minor

Paragraph 54 quotes Section 48(6) with the sub-article label garbled as '(486)' in the judgment text.

material

The name and case number of the suit do not appear in the provided judgment extract; parties are referred to only as Claimant and Respondent.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Entertainment & Music Industry Employees v Kenya Cultural Centre (Cause E168 of 2024) [2025] KEELRC 641 (KLR)", Case Analysis (2025). Not stated in extract (Statement of Claim; Respondent's Statement of Response and Counterclaim dated 26th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/641/eng@2025-02-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.