Kenya Union of Pre-Primary Education Teachers v Turkana County Public Service Board & another (Cause E019 of 2023) [2026] KEELRC 284 (KLR) (29 January 2026) (Ruling)

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KITALE CAUSE NO. E019 OF 2023 KENYA UNION OF PRE-PRIMARY EDUCATION TEACHERS………..….……………………..…. CLAIMANT VERSUS TURKANA COUNTY PUBLIC SERVICE BOARD...1ST RESPONDENT COUNTY SECRETARY TURKANA COUNTY GOVERNMENT……….……...2ND RESPONDENT RULING 1. Before this Court is an application by way of Notice of Motion dated 12th June 2024 filed by the Claimant. It seeks the following orders:- a) Spent b) That this honourable court be pleased to order the Respondents to compute and deposit in the court account, all the deducted union dues in respect of the Applicant herein from December 2023 to date 1 KTL ELRC CAUSE NO E019 OF 2023 RULING c) That the Respondents be ordered to remit subsequent dues to the union within 10 days of such deductions being made and to furnish the union with the bi-products for each month upon deducting union dues. d) That this honourable court be pleased to summon the County Secretary of Turkana County Government to appear in court for examination of facts and full adjudication of this dispute e) That costs be in the cause 2. The application is founded on the grounds set out at the foot of the application and in the supporting affidavit of SAMUEL A. OPIYO who describes himself in the supporting affidavit as the authorised representative of the Claimant. 3. The grounds on the face of the application as reiterated in the supporting affidavit are: - a) That the Claimant had resubmitted the details of the recruited members as directed by this Honourable Court Order dated 28th July 2023 issued in open court on 27th July 2023 in the terms that the parties to reconcile the details of members of the Union. 2 KTL ELRC CAUSE NO E019 OF 2023 RULING b) THAT on 26th January 2024, the Respondent sent a communication to the Union through email detailing the position on deduction of union dues. In the same email, the Respondent provided an excel sheet indicating the list of members subjected to deduction of union dues and those rejected for various reasons. It was also indicated that the by- product would reflect the level of deduction. c) THAT the Respondents commenced deduction of union dues from members of the Applicant from December 2023 but to date and despite constant requests made by the Applicant seeking payment of union dues in that respect as well as bi-products, no response has ever come forth. d) THAT the Applicant bent backwards and requested court to mark the matter as closed given that the Respondents had ultimately commenced deduction of union dues. The court however stated that any party was free to reopen the file should there be an issue requiring court's intervention. e) THAT the Respondents' refusal to issue the Applicant with bi-products has made it difficult for the Applicant to 3 KTL ELRC CAUSE NO E019 OF 2023 RULING execute through judicial review given that a certificate of order would be necessary yet the Applicant cannot know the specific amount owed as deducted union dues. The action of the Respondents constitute offence under Section 50 of the Labour Relations Act. f) THAT this court do invoke Section 50 of the Labour Relations Act to compel the Respondents to compute and deposit into the court account the accrued union dues deducted so far. g) THAT it is in the interest of justice that this application is allowed so as to make ends of justice to be met. 4. The application is opposed by the Respondents vide grounds of opposition dated 23rd September 2024 on the grounds that:- i. THAT the Notice of Motion Application as drawn and filed herein is bad in law, misconceived, incompetent, unwarranted, ill-advised and frivolous and should therefore be dismissed in limine 4 KTL ELRC CAUSE NO E019 OF 2023 RULING ii. THAT the Application is diversionary tactic intended to mislead this Honourable court from the factual issues herein iii. THAT this Honorable Court is improperly moved by citing the wrong provisions of the law which are non-existent in essence derogating the foundation of this Application and therefore incompetent since such a mistake constitutes a fundamental neglect which goes to the very root of the Application itself. iv. THAT the Applicant has claimed that the Respondents have refused to remit the union dues or to issue the Applicants with the bi -products without any proof of such refusal. The Applicants have continuously claimed that the Respondents have not remitted Union dues for the Months of December, 2023, January 2024 and February 2024 without producing any cogent evidence to that effect. v. THAT this Application is filed prematurely since parties have been engaging each other and there have been correspondence to that effect. Therefore, there was no 5 KTL ELRC CAUSE NO E019 OF 2023 RULING need to file the Application without showing that such discussions have broken down. vi. That this Honourable Court should not, therefore, allow the parties at this stage to discuss the matter and amicable resolve the misunderstanding before it can intervene (sic) vii. That the application filed herein should accordingly, be dismissed with costs to the Respondent. 5. The Respondents further filed a Replying Affidavit sworn on 30th June 2025 by James Eyen, the Payroll Manager of the Turkana County Government. He depones that on 20th May 2025, the Court directed him and the County Secretary to ensure that deductions and remittances were effected, failing which they were to appear before Court on 2nd July 2025. He avers that deductions were effected for the period November 2024 to June 2025, remittances made, and by-products served upon the Claimant via official email. He further avers that delays were occasioned by the migration from the IPPD system to HRIS-KE between December 2024 and March 2025, 6 KTL ELRC CAUSE NO E019 OF 2023 RULING as well as the Claimant’s failure to respond to concerns raised in the report dated 28th October 2024. 6. According to the Respondents, on 16th October 2024 this Court directed the deponent to file a report detailing the process undertaken by the County Government in relation to the deduction and remittance of union dues. The Respondents contend that they complied with the said directions and filed a report dated 28th October 2024, which contained the requested by-products. 7. It is the Respondents’ case that upon scrutiny of the old IPPD system, it was established that contrary to the list of thirty- four (34) members provided by the Claimant, only eighteen (18) members were eligible for deduction and remittance of union dues. The Respondents aver that twelve (12) members had reached the one-third basic salary threshold, three (3) members had provided incorrect details, and one (1) member was not captured in the IPPD system. 8. The Respondents further contend that although the Claimant subsequently forwarded another list of thirty-four (34) members for deductions, further calculations revealed that 7 KTL ELRC CAUSE NO E019 OF 2023 RULING deductions continued to be effected only in respect of the original eighteen (18) eligible members, to the exclusion of the additional members. 9. The Respondents aver that the salaries of several purported members were stopped pursuant to a letter dated 26th July 2024, in which the County Secretary directed the stoppage of salaries for officers who had failed to submit declarations of income, assets, and liabilities, thereby rendering remittance of union dues impossible. Further, that some individuals allegedly registered with the Union during interviews but were never confirmed as employees of the County Government. 10. It is the Respondents’ case that the remaining fifteen (15) confirmed members failed to meet the one-third basic salary rule under section 19(3) of the Employment Act, and that the IPPD system was configured to prevent deductions that would contravene this statutory requirement. 11. The Respondents maintain that they have remitted union dues diligently and in compliance with the law, and that 8 KTL ELRC CAUSE NO E019 OF 2023 RULING where remittances were not effected, valid and lawful reasons were provided. 12. Consequently, the Respondents urge the Court to close the file on the basis that the Court’s orders have been complied with and that the prayers sought have since been overtaken by events. 13. The Respondents also filed a Supplementary Affidavit sworn on 25th November 2024 by James Eyen. 14. The application was disposed of by way of written submissions. The Claimant’s submissions are dated 18th September 2025, while the Respondents’ submissions are dated 31st October 2025. The Claimant’s Submissions 15. In its submissions, the Claimant avers that it filed the present application following the Respondents’ refusal to effect deductions of union dues in respect of a further list of thirty- four (34) members submitted under a cover letter dated 20th April 2024 pursuant to an order of this Court issued on 27th July 2023 directing the parties to reconcile the details of Union members. 9 KTL ELRC CAUSE NO E019 OF 2023 RULING 16. The Claimant submits that the Respondents’ response addressed only the initial list of thirty-four (34) members and was completely silent on the subsequent list, which forms the subject of the present application. According to the Claimant, there exist two distinct lists of thirty-four (34) members each, both submitted in compliance with the Court’s order. 17. The Claimant further submits that in respect of the first list of thirty-four (34) members, the Respondents informed the Court that only eighteen (18) members were eligible for deduction of union dues, with the remainder excluded on the basis that their salaries fell below the one-third retention rule. The Claimant contends that this position is contrary to the principle that union dues are statutory deductions which ought to take precedence over non-statutory deductions. The Claimant maintains that members whose salaries allegedly fall below the one-third threshold continue not to be subjected to union deductions, in breach of the law. 18. Relying on section 48 of the Labour Relations Act, the Claimant submits that once an employer is served with duly executed check-off forms, it is under a statutory obligation to 10 KTL ELRC CAUSE NO E019 OF 2023 RULING commence deduction of union dues within thirty (30) days of receipt. 19. In this regard, the Claimant urges the Court to find that the Respondents have willfully and deliberately failed to comply with this statutory obligation by refusing to effect deductions in respect of members in the second list of thirty-four (34) members, as well as in respect of the fourteen (14) members excluded on the basis of the one-third salary rule. 20. The Claimant contends that the Respondents’ actions violate the affected members’ constitutional right to freedom of association under Article 36, read together with Article 41 of the Constitution. 21. The Claimant has therefore urged the Court to allow the application and to award costs with interest at Court rates from the date of filing until payment in full. The Respondents’ Submissions 22. In their submissions, the Respondents identify the main issue for determination to be whether they willfully and knowingly failed to remit statutory union dues and to provide the resultant by-products to the Claimant. 11 KTL ELRC CAUSE NO E019 OF 2023 RULING 23. The Respondents submit that they deducted union dues from members of the Claimant and remitted the same to the Claimant’s account for the period November 2024 to June 2025, and that the corresponding by-products were duly served upon the Claimant through the official email address on record. They contend that the orders sought have therefore been overtaken by events and are spent. 24. The Respondents further submit that where delays occurred, or where deductions and remittances were not effected, sufficient explanations were provided through their pleadings, particularly the report dated 28th October 2024 and the Replying Affidavit sworn on 30th June 2025 by James Eyen, the Payroll Manager of the Turkana County Government. 25. The Respondents maintain that upon reconciliation of the initial list of thirty-four (34) members, only eighteen (18) members were eligible for deduction of union dues pursuant to section 19(3) of the Employment Act, 2007. On this basis, they submit that the orders sought by the Claimant are 12 KTL ELRC CAUSE NO E019 OF 2023 RULING unlawful and that the Respondents cannot be cited for contempt for acting in compliance with statutory provisions. 26. Consequently, the Respondents submit that having remitted all union dues up to June 2025, the matter has been overtaken by events and ought to be struck out in limine. Analysis and Determination 27. From the application, the rival affidavits on record, and the submissions of the parties, the issue that falls for determination by this Court is whether the orders sought in the application dated 12th June 2024 are merited. 28. The background of this case is that the Claimant filed a Statement of Claim dated 20th June 2023 seeking the following orders:- i. That this Honourable Court be pleased to order the Respondents to pay the Claimant a sum of money being union dues which the Respondents allegedly willfully refused to deduct from the Claimant’s members with effect from June 2022, and that the same be paid from the Respondents’ own resources with interest at Court rates 13 KTL ELRC CAUSE NO E019 OF 2023 RULING ii. A declaration that the particulars required to be provided in Form S are limited to the union membership number, name of the member, signature, and the date on which the member completes the form iii. A declaration that the Respondents’ demand for declaration letters from union members requesting the employer to deduct union dues is not a prerequisite or condition for the deduction of union dues iv. That the costs of the suit be borne by the Respondents. 29. Together with the Statement of Claim, the Claimant filed a Notice of Motion seeking an order that this Honourable Court be pleased to direct the Respondents to commence forthwith the deduction of union dues from one hundred and eight (108) ECDE teachers who had acknowledged membership of the Claimant’s Union. 30. When the application came up for hearing before the Court on 27th July 2023, the Court directed the parties to harmonise and reconcile the membership details of the union members in issue. 14 KTL ELRC CAUSE NO E019 OF 2023 RULING 31. Following the said orders, the Claimant submitted two separate lists, each containing thirty-four (34) names, at different times. The Respondents however, effected deductions and remittances in respect of eighteen (18) members contained in the first list. 32. The dispute therefore concerns the remainder of the Claimant’s members whose union dues were not deducted and remitted by the Respondent. Whereas the Claimant contends that both the first and second lists, each containing thirty-four (34) members, ought to be subjected to deductions, the Respondents maintain that only eighteen (18) eligible members from the first list were lawfully engaged and are therefore subject to deduction. 33. While Section 48 of the Labour Relations Act imposes a statutory obligation on an employer to deduct and remit union dues, that obligation is not absolute and must be exercised in conformity with other legal safeguards, including the one-third salary protection rule. An employer cannot lawfully effect deductions that would result in an employee 15 KTL ELRC CAUSE NO E019 OF 2023 RULING earning less than the minimum portion of wages protected by law. 34. The Respondents submitted a report dated 28th October 2024, along with affidavits from the Payroll Manager, explaining how they assessed which members were eligible, the limitations of their payroll system, and why some members could not have their dues deducted. The Claimant did not provide any strong evidence to show that the deductions should have been made anyway, or that the reasons given by the Respondents were not valid and constituted just an excuse. 35. On the issue of remittance and supply of by-products, the Respondents averred that remittances for the period November 2024 to June 2025 were effected and that the corresponding by-products were transmitted to the Claimant via the official email address on record. While the Claimant disputes receipt, no material was placed before Court to demonstrate deliberate non-remittance or willful refusal to comply with Court orders, particularly after the directions issued on 20th May 2025. 16 KTL ELRC CAUSE NO E019 OF 2023 RULING 36. The Court also notes the undisputed evidence that the payroll system was at the material time being migrated from IPPD to HRIS-KE between December 2024 and March 2025. This explains why there were delays in processing salaries. Such delays, on their own, cannot be seen as deliberate refusal to obey the law or any Court orders. 37. Consequently, the Court finds that the substantive prayers sought in the Notice of Motion dated 12th June 2024 have been overtaken by events and are no longer tenable. In the result, the application dated 12th June 2024 lacks merit and is hereby dismissed with no orders as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JANUARY, 2026 MAUREEN ONYANGO JUDGE 17 KTL ELRC CAUSE NO E019 OF 2023 RULING