Kenya Union of Commercial and Food Allied Workers v Heet Supplies Hardware Limited Pemage EA Services Limited (Employment and Labour Relations Cause E033 of 2024) [2025] KEELRC 3775 (KLR)

services to various establishments and in particular to the 1 st Respondent. 4. By virtue of its constitution the employees of the Respondents fall within the purview of the Claimant’s membership and it is the right union to represent the employees of the Respondent in labour matters. 5. The Claimant avers that on various dates between February 2023 and May, 2024 it recruited 27 out of 36 employees of the 2nd Respondent working at the 1 st Respondent’s premises, which translates to about 78%, far above the simple majority of 50% +1 required by the law under section 54 of the Labour Relations Act. 6. The Claimant avers that through a letter dated 24 th April, 2024 it sent dully filled check off forms to the 2 nd Respondent for the purpose of deduction and remittance of union dues. That it thereafter sent a copy of the model recognition agreement to the Respondents to study and sign but the Respondents declined to allow a meeting for the purpose of signing the Recognition Agreement. 2 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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7. The Claimant avers that the Respondents started victimizing, coercing, threatening and terminating arbitrarily any employee who was suspected of belonging to the Claimant union with the intention to defeat trade union representation and to force them to withdraw their membership. 8. The Claimant states that it addressed a letter dated 10 th May, 2024 to the Respondents on the issue of victimization and harassment of its members but the Respondents continued with the intimidation. 9. The Claimant avers that the Respondents are obligated under Article 41(1) and (2)(a) and (b) of the Constitution to observe, respect, promote and uphold the rights of employees to fair labour practices, fair remuneration and reasonable working conditions. 10. The Claimant avers that the Respondents have refused, neglected and ignored to deduct and remit union dues despite being served with the check-off forms pursuant to section 48 of the Labour Relations Act. That the Respondents have further failed to recognize the Claimant in violation of Article 41 of the 3 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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Constitution and ILO Convention No. 87 and 98 on the right to bargain collectively. 11. The Claimant asserts that the Respondents’ employees have a right to freedom of association and the right to join and participate in trade union activities under Articles 36 and 41 of the Constitution. That the Respondents employees have an unquestionable right to join trade unions of their choice in the relevant sector in which they are employed. 12. The Claimant asserts that the employees of the Respondents cannot bargain for better terms individually and this has been made impossible by the Respondents. That they Aare further not able to channel their grievances to the Respondent without representation by a union. 13. The Claimant prays for the following remedies: i. That the Honourable Court award in favour of the Claimant Union and order the Respondents to recognize the Claimant Union. ii. That the Respondent to deduct and remit union dues jointly or severally. 4 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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iii. That parties do engage in Collective Bargaining within 60 days upon signing of the Recognition agreement. iv. This Honourable court grant any other relief as it may deem fit. v. Costs of the suit to be borne by the Respondent. 14. The 1st Respondent filed a Response to the Statement of Claim alleging that there is a misjoinder of the 1 st Respondent for reasons that: a. At paragraph 3 of the Statement of Claim, the Claimant describes the 2nd Respondent as a company dealing in supply of labor services in various establishments within Uasin Gishu County and its environs. The 2nd Respondent cannot supply labor services provided by laborers who are not its employees. b. The Claimant has also admitted under paragraph 5 of the Statement of Claim that its alleged 27 members out of the 36 are employees of the 2 nd Respondent. The 1st Respondent has attached the engagement 5 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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letters between the 2nd Respondent and the alleged members of the Claimant in its list of documents in support of this statement. c. Since there exist no employer-employee relationship between the 1st Respondent, the only recognized Employer of the alleged members of the Claimant is the 2nd Respondent whom they have acknowledged as such in their Statement of Claim. 15. The 1st Respondent avers that even after acknowledging the absence of employment relationship between the 1 st Respondent and the alleged members of the Claimant, the Claimant has still dragged the 1 st Respondent in this suit. The 1st Respondent thus states that the 1st Respondent Company is not a necessary party in these proceedings and should thus be struck out. 16. The 1st Respondent avers that it has never entered into any agreement with the alleged members of the of the Claimant and that the said members are strangers to the 1 st Respondent in as far as employment is concerned. The 1st Respondent further avers that the 2nd Respondent has admitted being the 6 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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employer of the alleged members of the Claimant and has described the nature of contracts it executed with the alleged members of the Claimant. 17. Regarding the allegations of victimization, coercion threats and arbitrary termination, the 1st Respondent avers that it is not possible for it to victimize members of the Claimant over whom it has no control. 18. Regarding deduction and remittance of union dues the 1 st Respondent avers that this can only be done by the 2 nd Respondent. That the same applies to the averments of fair labour practices, fair remuneration and reasonable working conditions which are only applicable where there is an employment relationship. 19. The 1st Respondent prays that the Claimant’s suit against it be dismissed with costs. 20. The 2nd Respondent filed a Response to the Memorandum of Claim dated 15th November, 2024 and another one dated 6 th December, 2024. In both responses which are largely similar but not identical, it avers that the philosophy on industrial relations and trade unionism is founded on section 54(8) of the 7 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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Labour Relations Act which provides that when determining a dispute relating to recognition of a trade union the court shall consider the sector in which the employer operates and the model recognition agreement published by the Minister. The 2 nd Respondent avers that the 1st Respondent deals with hardware materials while the Claimant’s constitution relates to manufacturing and supply of food stuff thus the Respondents are outside the Claimant’s sphere of food manufacturing and supply sector. 21. The 2nd Respondent denies that the Claimant recruited 28 out of 36 employees of the 2nd Respondent into its membership. It contends that it has a total of 67 employees on 3-month contracts hence the Claimant does not command a simple majority of its members. It states that some of the names in the check-off list are not employees of the 2nd Respondent, that some signatures appended to the check-off forms are questionable. That some of the employees whose names are in the list are not members of the Claimant or any union and their signatures have been forged by the Claimant for ulterior motives. 8 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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22. The 2nd Respondent avers that the Claimant has no locus standi to bring the suit herein for reason that it cannot establish that it has recruited a simple majority of membership from unionisable employees of the 2nd Respondent. 23. The 2nd Respondent avers that it is a stranger to the Claimant’s averments of victimization, coercion, threats and arbitrary termination of employees suspected to be union members as alleged in the Memorandum of Claim. It denies victimizing and intimidating its employees on account of their membership of the Claimants. 24. The 2nd Respondent further avers that its employees are engaged on 3 month contracts and the contracts of the Claimant’s members expired and they were paid outstanding terminal dues. 25. The 2nd Respondent avers and pleads that in as much as the agreement between the parties and the terms of engagement provided for a renewal of the contract, the 2nd Respondent was unable to renew the same and or to further engage the Claimant union’s members because of the reasons that: - 9 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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a. On or about April and May 2024, several of union members/employees of the Claimant union maliciously and without verification of the truth thereof , without any justifiable cause published of and concerning the 1 st respondent and caused to be circulated, libellous, offensive and malicious information on social media and in particular facebook, whatsapp and post in the following words: “Boycott Heet hardware Eldoret over mistreatment of employees, Watu wa pilipili wanatesa waafrika” b. The said defamatory publications paralyzed the business of the 1st respondent and as a consequence the 2 nd Respondent was surcharged for the losses. c. The said defamatory posts were malicious and calculated, to injure, disparage and lower the image with which right thinking members of the society in general regarded and held the 1st Respondent. Further the Claimant's union members published the said sensational defamatory words out of malevolence and spite and without justifiable cause 10 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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thereby discrediting the good way and the reputation of the 1st Respondent. d. The 2nd Respondent avers that some of the members of the claimant left employment purely on account of engaging in gross misconduct of illegal boycott, forgery and theft of 1 st Respondent’s properties within the 1 st Respondents premises while on duty which misconduct was captured on CCTV footage and which prompted criminal proceedings to be instituted against them. e. The 2nd Respondent avers and pleads that following the expiry of the contract engagement with the Claimant union members, it paid the Claimant's union members and in full, all their dues and entitlement as spelt out in law and nothing remains unpaid. 26. The 2nd Respondent prays that in light of the fact that there existed no employment or contractual obligation binding the Claimant’s members and the 2nd Respondent, the claim against it by the Claimant is misconceived and unwarranted in law and should be dismissed with costs. 11 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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27. The suit was disposed of by way of written submissions which the parties filed and exchanged. The Claimant’s submissions are dated 16th April, 2025 while the Respondent’s submissions are dated 25th March, 2025. The Respondent also relies on its submissions dated 27th May, 2024 in respect of the applications referred to herein above. Analysis and Determination 28. I have considered the pleadings and the submissions. I have further considered the authorities cited and relied upon by the parties. The issues arising for determination are: a) Whether the Claimant has any cause of action against the 1st Respondent, b) Whether the Claimant is the right union to recruit the employees of the 2nd Respondent, c) Whether the Claimant has achieved a simple majority among the employees of the 2nd Respondent, and, d) Whether the Claimant is entitled to the prayers sought in the Memorandum of Claim. 12 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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29. The Claimant pleaded in the Memorandum of Claim, that the 2nd Respondent supplies labour to work for the first Respondent and that the Claimant had recruited 27 out of 36 of the 2 nd Respondents employees working at the 1 st Respondent’s premises. The fact that the employees of the 2 nd Respondent work in the premises of the 1st Respondent does not make the 1st Respondent the employer of such employees. From these pleadings, the Claimant has no cause of action against the 1 st Respondent as the 1st Respondent does not have any employees among those recruited by the Claimant. 30. With respect to the locus standi of the Claimant to recruit the employees of either the 1st or 2nd Respondent, the 1st Respondent runs a hardware which is a retail business. The Claimant is by its constitution authorized to represent employees in supermarkets, shops, retail and wholesale outlets, distribution and supply companies. The Claimant is therefore the proper trade union to represent employees engaged by the 1st Respondent. 31. On the third issue, the Claimant avers that it has recruited a simple majority and is entitled to recognition. The 2 nd 13 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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Respondent however denies that the employees recruited by the Claimant constitute a simple majority. It avers that it has a total of 67 employees and the Claimant has thus not achieved a simple majority as required under section 54 of the Labour Relations Act. 32. The 2nd Respondent however did not supply a list of the said 67 employees or indicate if all of them work at the 1 st Respondent’s premises. 33. As provided in the Labour Relations Act, recognition is at enterprise level unless the employer belongs to an Employers Association within the particular sector and the Association represents the employer. In which case the union would have to recruit a simple majority of the employees of the Association’s members. 34. In this case the 2nd Respondent is a labour supplier meaning that it supplies labour to different entities across different sectors. For purposes of this suit the employees that the Claimant ought to recruit a simple majority from are those working at the 1st Respondent’s premises and not its total 14 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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workforce, some of whom work in different enterprises or sectors. 35. Further, the material time is the date when the Claimant seeks recognition. The reason for this is that employment numbers are fluid and change regularly based on new employees joining employment and some employees existing employment for various reasons. That Claimant therefore only has to prove that on the date it sought recognition it had a simple majority. 36. Another misconception is that casual employees are not unionisable. There is no law that excludes casual employees from joining union membership or which stops a union from engaging in collective bargaining to protect the rights of casual employees. The fact that the 2nd Respondent’s employees deployed at the 1st Respondent’s premises were on 3-month contracts does not preclude them from joining union membership. The Union however must keep updating its membership so that as old members leave employment it continues to recruit new members from employees who are newly recruited. 15 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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37. It should further be noted that the purpose of outsourcing labour is to improve performance by specialization so that management of a company can concentrate on core business. Outsourcing is not intended to subject employees to unfair labour practices by engaging casual employees in jobs that are permanent in order to deny them fair terms of service. 38. In the instant case even though the 2 nd Respondent did not submit the list of the 67 employees it avers to be in its employment and proof that all the 67 employees are engaged at the premises of the 1st Respondent, the Claimant did not make any attempts to analyze the list provided by the 2 nd Respondent to prove that it had a simple majority at the time it sought recognition. 39. From the evidence on record the court is not able to ascertain that the Claimant had recruited a simple majority of the 2 nd Respondent’s employees at the time it sought recognition. As provided in sections 107, 108 and 109 of the Evidence Act, the burden of proof lies with the person who desires the court to give judgment in its favour as to any legal right or liability dependent on the existence of facts which he asserts, which he 16 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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must prove to exist, or the person who is bound to prove the existence of any fact, or the person who would fail if no evidence at all were given on either side or on the person who wishes the court to believe in its existence. 40. In the instant case the Claimant has not persuaded me on a balance of probability that it had recruited a simple majority of the 2nd Respondent’s employees deployed at the premises of the 1st Respondent as at the time it sought recognition by the 2nd Respondent. 41. For the forgoing reasons, I find no merit in the Claimant’s case with the result that the same is dismissed. 42. Each party shall bear its costs. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 11TH DAY OF DECEMBER, 2025 MAUREEN ONYANGO JUDGE 17 ELD ELRC CAUSE NO. E033 OF 2024 JUDGMENT

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