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ELRCDismissedPetition dated 16.10.2024 (ELRC Petition)

Matheka & 3 others v Kenya Airline Pilots Association & 2 others; Ministry of Labour and Social Protection & 3 others (Interested Parties) (Constitutional Petition E168 of 2024) [2025] KEELRC 721 (KLR)

Employment and Labour Relations Court
7 March 2025
6,501 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court upheld unions' agency fee deductions and exclusive recognition agreements, dismissing a Kenya Airways pilot's constitutional challenge in full.

What this practically means

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Executive summary

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The petitioners, led by a Kenya Airways pilot expelled from the Kenya Airline Pilots Association (KALPA), sought declarations that KALPA's expulsion of the 1st petitioner violated Article 47(1); that the agency fee deductions and interference with his employment violated Articles 41(1) and 47(1); that the exclusivity of representation under clause 3(a) of the 1978 recognition agreement and various 2017 CBA provisions (compulsory membership, control of recruitment, training, promotion, flight operations, and 48-hour uncertified sick leave) violated Articles 27(1), 36 and 41; and injunctions, refund of agency fees, damages of Kshs 10,000,000 and directions to the CEO of Kenya Airways. KALPA denied the claims, asserting lawful registration, lawful agency fee deductions under section 49 of the Labour Relations Act and the 2021 Ministerial order, due process in the expulsion, and that the new CBA signed on 19.12.2024 and registered on 29.01.2025 rendered the petition nugatory. Kenya Airways supported the petition, contending that the recognition agreement and section 54 were outdated and unconstitutional, and that it deducted agency fees under colour of law. The Competition Authority sought to be removed as a party. The court dismissed the petition: no unconstitutional conduct was established on agency fees (section 49's constitutionality not having been pleaded); the expulsion claim was not proved and appeared res judicata; clause 3(a) is not per se unconstitutional since a statutory path exists for recognition of new unions under section 54 and termination of recognition agreements under section 54(5); claims on the 2017 CBA were moot after the new CBA; and each party was to bear its own costs given the continuing work relationships.

Questions the Court framed

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

  1. 1.Whether the deduction and remittance of agency fees from the 1st petitioner's salary under section 49 of the Labour Relations Act and the Ministerial order is unlawful or unconstitutional
  2. 2.Whether the expulsion of the 1st petitioner from the 1st respondent violated Article 47(1) on fair administrative action
  3. 3.Whether clause 3(a) of the 1978 recognition agreement creating exclusivity of representation is unconstitutional for shutting out employees' right to form or join other unions
  4. 4.Whether the 2017 CBA and recognition agreement provisions amounting to union control over recruitment, training, promotion and flight operations were unlawful or unconstitutional
  5. 5.Whether the claims relating to the 2017 CBA are moot following registration of the new CBA in January 2025

Key legal issues

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01

Lawfulness of agency fee deductions from a non-member under section 49 of the Labour Relations Act

Holding

The deduction was lawful; nothing unconstitutional was established and the constitutionality of section 49 was not pleaded

Reasoning

The court held that section 49 requires the employer to deduct and remit agency fees for unionisable staff who are not union members, per the Ministerial order (Legal Notice No. 174 of 2021). Since the constitutionality of section 49 was not pleaded as an issue, the court could not determine it, and no unconstitutional conduct was shown.

p. 11
02

Violation of Article 47(1) fair administrative action in the expulsion of the 1st petitioner

Holding

No violation established; the expulsion letter showed reasons and procedure, and the issue appears res judicata in ELRC Petition E015 of 2022

Reasoning

The expulsion letter of 08.02.2022 referred to a show-cause letter and a further letter, indicating reasons and procedure, and was subject to review or ratification at a conference. The court was not informed of further steps. The issue also appears to have been decided or to have ought to have been decided in the earlier petition, rendering it res judicata.

p. 11
03

Constitutionality of the exclusivity/monopoly clause 3(a) of the 1978 recognition agreement

Holding

Clause 3(a) is not unconstitutional per se; it can be construed and implemented consistently with Articles 36 and 41 and section 54 of the Labour Relations Act

Reasoning

The court adopted the 1st respondent's submission that employees in the covered categories are not bound by the clause and remain free to form and join other unions; a new union meeting the section 54 simple-majority threshold must be recognised. Only a specific application producing an unconstitutional effect would fall for quashing in appropriate proceedings. A statutory path under section 54(5) also exists to terminate or revoke a recognition agreement.

p. 12
04

Claims based on the 2017 CBA (sick leave, recruitment control, union directives on flight operations)

Holding

Moot; the 2017 CBA has been replaced by a new CBA registered on 29.01.2025, and the petitioners did not challenge that the new CBA resolves the issues

Reasoning

The court found it common ground that the 2017 collective agreement was overtaken by the subsequent agreement registered in court on 29.01.2025, rendering the related prayers moot. Any challenge to a registered collective agreement may be brought under rule 78 of the ELRC (Procedure) Rules 2024, and discrimination claims require particulars of affected employees.

p. 13

Legal principles established

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  • A recognition agreement clause granting a union exclusivity of representation is not inherently unconstitutional; it is capable of lawful and constitutional implementation, and only its application with an unconstitutional effect in a particular case would fall for nullification
  • Employees remain free to form and join other unions notwithstanding a monopoly clause, and an employer is obligated to recognise a new union meeting the threshold in section 54 of the Labour Relations Act
  • Where a collective agreement has been replaced by a subsequent registered agreement, claims premised on the superseded agreement are rendered moot

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each party to bear own costs of the petition

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 41, 47 of the Constitution of Kenya, 2010 (employment and labour relations jurisdiction of the ELRC)

Relief refused

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All declarations sought under Articles 27, 41 and 47 of the Constitution

The court found nothing unconstitutional established; the reliefs 'collapse as not established or as unjustified'

p. 14

Permanent injunctions against the Association and orders on agency fees, damages of Kshs 10,000,000 and directions to the CEO of Kenya Airways

Founding claims not established; agency fee deduction backed by section 49 of the Labour Relations Act; expulsion issue res judicata; 2017 CBA claims moot

p. 14

Costs

Each party to bear own costs of the petition

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.

In conclusion the petition is hereby dismissed and each party to bear own costs of the petition.
p. 14Disposition
Thus, the clause 3(a) by itself is not unconstitutional or unlawful as it is not shown to be inherently inconsistent with a constitutional rule or statutory prescription and can be constitutionally or lawfully implemented.
p. 12Monopoly/recognition clause constitutionality
The Court returns that nothing unconstitutional has been established for the 1st petitioner to show that the deduction of the agency fees is unlawful or unconstitutional.
p. 11Agency fees under section 49
The Court finds that the prayers as relates to the overtaken collective agreement are thereby rendered moot.
p. 13Mootness of claims on the superseded 2017 CBA
In that regard, the issue appears to the Court to be res judicata.
p. 11Expulsion claim res judicata
Where its implementation in a specific situation results in unconstitutional or unlawful impact, then such impact would fall for quashing or nullification in appropriate proceedings.
p. 12Facial versus as-applied unconstitutionality

Issues in the judgment

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minor

The judgment dates the expulsion letter 06.02.2023 in the petitioner's affidavit narrative but the court's finding refers to an expulsion letter dated 08.02.2022, and the show-cause correspondence is dated 2022

minor

The recognition agreement is dated 05.05.1978 in the 1st respondent's affidavit but the petition and prayers refer to a '1979 recognition agreement'

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, "Matheka & 3 others v Kenya Airline Pilots Association & 2 others; Ministry of Labour and Social Protection & 3 others (Interested Parties) (Constitutional Petition E168 of 2024) [2025] KEELRC 721 (KLR)", Case Analysis (2025). Petition dated 16.10.2024 (ELRC Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/721/eng@2025-03-07

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