Kenya Aviation Workers Union v Jambo Jet Limited

2|Page i. A declaration that the Respondent's refusal and or failure to deduct and remit union dues and agency fees from the more than 161 unionisable employees who were liable to pay union dues or agency fees by way of check off deductions by the Respondent from their monthly salaries with effect from 30-4-2025, intimidation and enticing away of unionisable from joining the Claimant is breach of freedom of association and participation in union activities, unfair labour practices and breach of Gazette Notice No. 1191 dated 19-2-2014 published on 21-2-2014, the Constitution and Labour Relations Act hence illegal, unlawful, null and void. ii. A mandatory Order directing the Respondent whether by itself, its officers, agents, servants or any person claiming to forthwith deduct and remit union dues to the Claimant through check off system pursuant to Gazette Notice No. 1191 dated 19-2-2014 published on 21-2-2014 in respect of the more that 161 unionisable employees who have signed subscription forms joining the Claimants membership and any other employees who may join the Claimants membership by signing membership forms and Claimants submission of the said signed forms to the Respondent as required by the relevant laws. iii. An order directing the Respondent whether by itself or its servants to forthwith to disclose and submit to the Claimant through this Court a list of all employees or 2 |JUDGMENT CAUSE NO. E1220 OF 2025

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3|Page human resource record of all employees with their job designation for purposes unionisable employees of audit to population determine within the Respondent and the Claimants attainment of simple majority recruitment threshold required for recognition of the Claimant. iv. An Order that the Respondent whether by itself or anyone acting under it shall recognize the Claimant, negotiate and Agreement in proceed to terms the of execute draft a Recognition Agreement on Recognition and Negotiating Procedures submitted to the Respondent by the Claimant in a letter dated 18-32025 which is annexed as document No. 1 in the Claimants List and Bundle of Documents filed with this suit and or in accordance with section 54(1) of the Labour Relations Act upon proof that the Claimant has attained simple majority unionisable employees membership in the Respondent. v. An order of permanent injunction to restrain the Respondents whether jointly or severally and or by itself, its officers, agents, servants or any person under their instructions from interfering with the Claimants and or any of the unionisable employees of the Respondents from recruiting into or joining the Claimants union, organising and participating in the Claimants lawful union activities, victimising and or punishing any of the unionisable employees of the Respondent on account of exercising the right to join or 3 |JUDGMENT CAUSE NO. E1220 OF 2025

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4|Page participate in union activities contrary to Article 41 of the Constitution of Kenya and or the Labour Relations Act. vi. Costs of the suit. 3. Simultaneously with the filing of the Memorandum of Claim, the Claimant filed a Notice of Motion seeking interlocutory orders compelling the Respondent to commence deduction and remittance of union dues, restraining interference with employees' freedom of association and directing disclosure of information relating to the Respondent's unionisable workforce. 4. The application was supported by the affidavit of Moss K. Ndiema together with documentary exhibits including checkoff forms, correspondence exchanged between the parties and the proposed Recognition Agreement. 5. The Respondent opposed the application through Grounds of Opposition dated 2nd March 2026 and a Replying Affidavit sworn by Wandera Kweyu, the Respondent's Director of People and Culture, and a Statement of Response dated 4th March 2026, denying the Claimant’s claim, and praying that the suit be dismissed with costs. 6. In response thereto, the Claimant filed a Supplementary Affidavit dated 23rd March 2026, and a reply to the defense reiterating the averments contained in the Memorandum of Claim while disputing the Respondent's defense. 4 |JUDGMENT CAUSE NO. E1220 OF 2025

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5|Page 7. When the Application came up for hearing before Court on 2nd March 2026, the Court observed that the application principally sought mandatory reliefs which substantially mirrored the final reliefs sought in the Memorandum of Claim. Consequently, the Court directed that the application be heard together with the main suit, and further directed parties to file submissions on both the motion and the main claim. 8. The parties filed their submissions, which were highlighted on 21st April 2026, whereafter judgment was reserved The Claimant's case 9. The Claimant avers that the evidence placed before the Court demonstrates that the Claimant successfully recruited 161 unionisable employees, all of whom voluntarily executed check-off forms authorizing deduction of union dues. Counsel argued that once the signed check-off forms were served on the Respondent, Section 48 of the Labour Relations Act imposed a mandatory statutory duty upon the Respondent to commence deduction and remittance of union dues. 10. The Claimant further avers that the Respondent has deliberately withheld information relating to the total number of its unionisable employees while simultaneously alleging that the statutory simple majority had not been attained. It maintains that in the absence of evidence disclosing the total unionisable workforce, the Respondent cannot discharge its 5 |JUDGMENT CAUSE NO. E1220 OF 2025

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6|Page evidential burden in rebutting the Claimant's assertion that the statutory threshold under Section 54 had been achieved. 11. The Claimant contends that the Respondent embarked on a systematic campaign aimed at frustrating employees' constitutional rights by intimidating employees, procuring withdrawal letters after commencement of recruitment and refusing to recognize the Claimant despite overwhelming employee support. 12. It further contends that employees' constitutional freedom of association under Articles 36 and 41 of the Constitution includes the right to freely join trade unions without employer interference and that any attempt by an employer to influence employees to withdraw from union membership constitutes an unfair labour practice. 13. The Claimant submits that the verification exercise allegedly undertaken by the Respondent was merely a pretext to defeat employees' constitutional rights and delay implementation of statutory obligations imposed under Sections 48 and 54 of the Labour Relations Act. 14. The Claimant urged the court to find that the Respondent unlawfully refused to deduct union dues, unlawfully withheld recognition of the Claimant, that it violated employees' constitutional rights and engaged in unfair labour practices warranting the grant of all the reliefs sought. 6 |JUDGMENT CAUSE NO. E1220 OF 2025

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7|Page The Respondent's Case 15. The Respondent avers that both the interlocutory application and the substantive claim are devoid of merit on the basis that the Claimant has failed to satisfy the statutory requirements governing recognition of trade unions and deduction of union dues. 16. The Respondent argues that recognition under Section 54 of the Labour Relations Act is contingent upon proof that a union has recruited a simple majority of unionisable employees, and that the burden of proving compliance with the statutory threshold rests squarely upon the Claimant. 17. The Respondent states that it lawfully undertook a verification exercise which exposed numerous anomalies including duplicate names, former employees, management employees who are legally excluded from union membership and employees who voluntarily resigned from the union. 18. The Respondent further contends that the Claimant's own correspondence dated 4th April 2025 amounts to an unequivocal admission that the statutory threshold had not been attained, thereby defeating the present claim. 19. Regarding the allegations of intimidation, the Respondent avers that no evidence whatsoever has been produced demonstrating coercion or undue influence by the Respondent. It is argued that the resignation letters relied upon by the Respondent were voluntarily authored by 7 |JUDGMENT CAUSE NO. E1220 OF 2025

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8|Page employees exercising their own constitutional freedom not to belong to a trade union. 20.The Respondent urges the Court to dismiss both the application and the Memorandum of Claim with costs. Analysis and Determination 21. The following issues arise for determination: i. Whether the Respondent is under a statutory obligation to deduct and remit union dues from the employees who signed the check-off forms. ii. Whether the Claimant has established that it attained the simple majority threshold under Section 54 of the Labour Relations Act. iii. Whether the Claimant is entitled to the remedies sought Whether the Respondent is under a statutory obligation to deduct and remit union dues from the employees who signed the check-off forms. 22.Section 48 of the Labour Relations Act governs deduction of trade union dues. Further, Section 48(3) provides that an employer upon whom the relevant ministerial order applies shall commence deduction within 30 days of being served with Form S signed by the employees in respect of whom deductions are required. 23.By dint of the foregoing provisions, the Respondent's argument that the Claimant cannot demand deduction of 8 |JUDGMENT CAUSE NO. E1220 OF 2025

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9|Page union dues unless it has first attained a simple majority is not supported by the wording of the Labour Relations Act. 24.The distinction was authoritatively considered in Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v Mombasa Golf Club [2022] KEELRC 505 (KLR), where the Court held that once Form S had been served upon the employer, the obligation to deduct and remit union dues arose within 30 days and that the obligation was not dependent upon attainment of the simple majority threshold under Section 54. The Court expressly held that the simple-majority requirement is for recognition, not for commencing the deduction of union dues. 25.The same distinction was recognized in Union of National Research Institutes Agricultural and Staff Livestock of Kenya Research v Kenya Organization [2020] KEELRC 349 (KLR), where the Court explained that Section 48 deals with membership and deduction of union dues, whereas Section 54 deals with recognition and collective bargaining. 26.More recently, in Kenya Union of Commercial, Food and Allied Workers v Jubilee Merchants Limited [2025] KEELRC 3432 (KLR), the Court held that an employer who receives duly signed check-off forms is under an obligation under Section 48, read together with Article 41 of the Constitution, to deduct and remit employees who have signed the forms. 9 |JUDGMENT CAUSE NO. E1220 OF 2025 union dues from

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10 | P a g e 27.Similarly, in Kenya National Private Security Workers Union v Ideal Security Ltd [2025] KEELRC 1377 (KLR), the Court ordered deduction and remittance of union dues from employees in service who had signed check-off forms, subject to the statutory provisions governing resignation. 28.The position is therefore settled that an employer cannot lawfully refuse deduction of union dues merely because the union has not attained the recognition threshold. 29.In the present case, the Claimant states that 161 employees signed check-off forms and that the forms were served upon the Respondent. The Respondent, on its part, argues that, though it received the forms, they bore various anomalies, such as duplicate names, names of former employees, names of management employees who were not unionisable, and names of employees who subsequently resigned. 30.In my view, the matters raised by the Respondent herein may legitimately affect which individual employees remain liable for deduction, but they do not justify a blanket refusal to deduct union dues from all employees whose membership has been validly established. 31.Further, Section 48(6) of the Labour Relations Act, 2007, provides a qualification, which is that an employer may not continue making deductions from an employee who has notified the employer in writing that he/she has resigned 10 |JUDGMENT CAUSE NO. E1220 OF 2025

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11 | P a g e from the union, with the resignation taking effect from the following month under Section 48(7). 32.In light of the foregoing, the Respondent is lawfully entitled to exclude persons who are not its employees, persons who are not unionisable, persons whose membership/check-off forms are demonstrably invalid, and employees who have validly resigned from the Claimant in accordance with section 48(6) and (7). 33.The Respondent cannot, however, rely upon a generalized allegation of “anomalies” to defeat the statutory obligation. 34.In the circumstances, I reach the conclusion that the Claimant has established its entitlement to deduction and remittance of union dues in respect of all validly recruited and unionisable employees who remain members, and are in the Respondent's employment. Whether the Claimant has established that it attained the simple majority threshold under Section 54 of the Labour Relations Act 35.Section 54(1) requires the Claimant to demonstrate that it represents a simple majority of the unionisable employees. 36.The Claimant has established a numerator of 161, subject to verification. It has not, however, conclusively established the denominator from the facts presented. 11 |JUDGMENT CAUSE NO. E1220 OF 2025

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12 | P a g e 37.The Court, in the circumstances, cannot simply declare the Claimant recognized merely because 161 employees have signed check-off forms. In Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v British Army Training Unit Kenya [2015] KEELRC 839 (KLR), the Court emphasized that recognition under Section 54 depends upon the union demonstrating that it represents more than a simple majority of unionisable employees. 38.Likewise, Kenya Union of Commercial Food and Allied Workers v Lake Treasure Ltd [2024] KEELRC 1641 (KLR) confirms that the question in a recognition dispute is whether the union has met the simple majority requirement within the relevant bargaining unit. 39.Further, the Respondent's argument that it was entitled to verify the membership is, in principle, sound. The Respondent cannot, however, use “verification” as an indefinite mechanism for frustrating the Claimant’s members’ statutory right of association. 40.The evidential question is therefore whether the Respondent has actually demonstrated the alleged anomalies. The Claimant's request for disclosure of the Respondent's human resource records is therefore directly relevant to determining the simple majority threshold. 41.In my considered view, the Respondent cannot simultaneously assert that the Claimant has not attained a 12 |JUDGMENT CAUSE NO. E1220 OF 2025

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13 | P a g e simple majority while withholding the information necessary to determine the total number of unionisable employees. 42.The Court further noted that the Respondent relies heavily on letters showing that some employees withdrew from the Claimant's union. The law recognizes an employee's right to withdraw from a trade union, and the Court cannot compel an employee to remain a member of a union. A resignation must, however, be voluntary and legally effective. The Respondent cannot procure or induce resignation and then rely on that resignation as evidence that the union never enjoyed employee support. 43.Section 46 of the Employment Act protects employees from adverse treatment on account of union membership or proposed membership, and the Court must therefore distinguish between a genuine voluntary resignation and a resignation obtained through intimidation, threats, inducement, coercion or employer interference. 44.The Claimant did not lead evidence to show which employees were intimidated or threatened, what was said or done against them, by whom, and whether the withdrawal letters followed such conduct. 45.It therefore follows that on the material presently before the Court, I do not find proof of intimidation against the Claimants’ membership. 13 |JUDGMENT CAUSE NO. E1220 OF 2025

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14 | P a g e 46.Further, considering the foregoing, I decline to order immediate recognition of the Claimant union on the present record, as no evidence demonstrates that the 161 valid members constitute more than half of the Respondent’s unionisable workforce, and noting that Section 54 does not permit the Court to presume the denominator. 47.In the final analysis, I find the Claimant’s Claim partly merited and proceed to grant the following reliefs:a) An order directing deduction and remittance of union dues from validly recruited union members who remain employees and have not lawfully resigned from the Claimant union. b) An order directing the Respondent to disclose to the Claimant its unionisable workforce for purposes of verification. c) An order restraining the Respondent from interfering with its employees' lawful freedom to join or participate in the activities of the Claimant Union. d) The Claimant’s prayer for immediate recognition is declined, e) The claim for deduction of agency fees is also declined. f) Parties shall bear their own costs. 14 |JUDGMENT CAUSE NO. E1220 OF 2025

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15 | P a g e 50. It is so ordered. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 24TH DAY OF SEPTEMBER, 2026. C. N. BAARI JUDGE Appearance: Mr. Litoro present for the Claimant Mrs. Kashindi present for the Respondent Ms. Esther S- C/A 15 |JUDGMENT CAUSE NO. E1220 OF 2025

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