https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2024

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT MOMBASA** **ELRC CAUSE NO. E038 OF 2025** **KENYA BUILDING CONSTRUCTION,** **TIMBER & FURNITURE** **INDUSTRIES EMPLOYEES UNION……………………………………………..CLAIMANT** **VS** **SINOHYDRO CORPORATION LIMITED…………………………………RESPONDENT** **RULING** A. Introduction 1. This ruling determines the Notice of Motion dated 11th July 2025, filed by the Respondent, Sinohydro Corporation Limited, seeking orders that this Court lacks jurisdiction to hear and determine the suit as filed, and that all pleadings, affidavits and documents filed by one Julius M. Maina be declared incompetent, null and void ab initio, struck out and expunged from the record, with costs to the Respondent. 2. The application is opposed by the Claimant vide its Grounds of Opposition dated 2ndSeptember 2025, filed pursuant to Rule 48 of the Employment and Labour Relations Court (Procedure) Rules, 2024. B. Background 1. The Claimant is a registered trade union which instituted this suit on behalf of eight (8) grievants, namely Abdalla Matano Kazungu, Morris M'mbetsa Mwero, Mwambire Haranga Mwambire, Nganyawa Chaka Nganyawa, Juma Nyanje Ramaddhani, Kobe Chirima Mwingo, Nduro Chirima Mwingo and Haron Mutisya Kisilu, all former employees of the Respondent, alleging that they were unfairly and/or wrongfully terminated from employment. 2. The suit is verified by a Verifying Affidavit sworn by Julius M. Maina, the National General Secretary of the Claimant Union, who also drew and filed the pleadings on the Claimant's behalf. 3. Following entry of appearance and response to the claim, the Respondent filed the Noticeof Motion now under consideration, supported by the affidavit of Fidelia Wambui, the Human Resources Manager of the Respondent, sworn on 11th July 2025. C. The Respondent's Case 6. The Notice of Motion is expressed to be brought under Rules 33 and 47 of the Employment and Labour Relations Court (Procedure) Rules, Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, Section 9 of the Magistrates' Courts Act, and Section 12 of the Employment and Labour Relations Court Act, and seeks the following orders:- i. That this Honourable Court be pleased to order that it lacks jurisdiction to hear and determine the suit as filed; ii. That this Honourable Court be pleased to make an order that all the pleadings, affidavits and documents filed by Julius M. Maina are incompetent, null and void ab initio, be struck out and expunged from the record herein; and iii. That the costs of the application be awarded to the Respondent. 7. The grounds upon which the application is anchored, as elaborated in the supporting affidavit of Fidelia Wambui, are that:- 1. the suit in its entirety is incurably defective and an abuse of the Court process; 2. the Verifying Affidavit has not been sworn and attested by the eight (8) employees onwhose behalf the suit is brought, and is therefore fatally defective, rendering the claim unsupported; 3. the Grievants are not, and have never been, members of the Claimant Union; 4. only two of the eight Grievants, namely Abdalla Matano Kazungu and Kobe Chirima Mwingo, authorised the filing of the suit, and in the absence of a registered Power of Attorney, cannot testify on behalf of the other Grievants; and 1. the Grievants' salaries do not exceed Kenya Shillings 80,000, and the suit therefore contravenes Section 12 of the Employment and Labour Relations Court Act, as read together with Gazette Notice No. 6024 contained in the Kenya Gazette, Volume CXX, No. 74, dated 22nd June 2018. 1. In its written submissions dated 7th November 2025, the Respondent, while formally maintaining the foregoing grounds, confined its legal argument to the singular question whether the Claimant has the locus standi to institute and maintain the suit on behalf of the eight grievants, this being anchored on the contention that the grievants were never members of the Claimant Union. In support, the Respondent drew the Court's attention to payslips at pages 62 to 74 of the Claimant's trial bundle, which reflect no deduction of union dues by the Respondent, and to correspondence between the Respondent, the grievants and the Labour Officer (pages 172 to 207), together with a mediation letter from the Ministry of Labour and Social Protection (pages 208 and 209), none of which make reference to the Claimant Union. 1. The Respondent relied, inter alia, on Kenya Shoe & Leather Workers Union v Falcon Tanners Ltd, Nairobi Cause No. 826 of 2012; Kenya Independent Commission Workers Union v Independent Electoral and Boundaries Commission (Petition 181 of 2020) [2024] KEELRC 2864 (KLR); Modern Soap Factory v Kenya Shoe and Leather Workers Union [2020] KECA 4 (KLR); and Kudheiha Workers v The Board of Management, Kihumbu-ini Secondary School [2015] KEELRC 880 (KLR), and urged the Court to grant the orders sought in the Notice of Motion. D. The Claimant's Grounds of Opposition and Submissions 10. The Claimant opposes the application vide Grounds of Opposition dated 2nd September 2025, on the following grounds:- 1. that the application by the Respondent is an abuse of the judicial process; 2. that the claim/suit is brought under the Labour Relations Act, 2007 and not under the Employment Act; iii. that the pleadings filed by the Claimant Union are fully compliant with the Employment and Labour Relations Court Rules; iv. that the Respondent has no capacity to dispute the membership of the grievants as members of the Claimant Union; and v. that the application, though styled as a Notice of Motion, is in essence a preliminary objection, filed without meeting the legal threshold of a proper preliminary objection. 11. In its written submissions dated 28th November 2025, the Claimant observed that the Respondent's submissions had effectively confined the contest to the single ground of the grievants' membership of the Claimant Union, and the resultant question of the Claimant's locus standi; the Claimant accordingly restricted its response to that issue, while reserving reliance on its Grounds of Opposition generally. 1. The Claimant submitted that representation of unionised employees by their trade union is a right flowing from the associational freedoms guaranteed under the Constitution, and is regulated by the constitution of the particular trade union, relying on Kenya Hotels and Allied Workers Union v Diani Sea Resort T/A Carslake Nominee Limited [2015] eKLR, and Kenya Shoe & Leather Workers Union v Falcon Tanners Ltd (supra). 2. The Claimant further submitted that the question whether the grievants are members of the Claimant Union is a contested question of fact which can only be resolved upon the taking of evidence, and cannot properly be determined on a notice of motion styled and argued as a preliminary point of law, relying on Modern Soap Factory v Kenya Shoe and Leather Workers Union, Civil Appeal No. 37 of 2019, and on the classical test for a preliminary objection set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, as restated in Odinga v Independent Electoral and Boundaries Commission & 3 others [2013] KESC 8 (KLR), and further relied on Matemu v Trusted Society of Human Rights Alliance & 5 others [2014] KESC 6 (KLR) on the treatment of jurisdictional objections. 3. The Claimant additionally pointed out that Section 52 of the Labour Relations Act, 2007 permits a member of a trade union to pay dues, levies or other subscriptions directly to the trade union, such that the absence of a check-off deduction on the grievants' payslips is not, without more, proof of non-membership; that the grievants hold union membership cards annexed at pages 175 to 190 of the trial bundle, which the Respondent does not allege to be falsified; and that the Respondent had, in any event, failed to participate in the mandatory conciliation process commenced by the Claimant, resulting in a certificate of non-resolution dated 2nd December 2024, at no point during which did the Respondent raise any objection to the Claimant's standing to represent the grievants. The Claimant relied further on Kenya Union of Commercial, Food and Allied Workers v Narugi Development Sacco Ltd [2023] KEELRC 3365 (KLR), and urged the Court to dismiss the Respondent's application with costs. **E. Issues for Determination** 15. Having considered the Notice of Motion, the supporting affidavit, the Grounds of Opposition, and the rival submissions and authorities relied upon by the parties, the Court identifies the following issues for determination:- 1. Whether alleged defects in the Claimant's pleadings, including the Verifying Affidavit, are capable of depriving this Court of jurisdiction, as opposed to founding an order striking out the offending document; 2. Whether the question of the grievants' membership of the Claimant Union, and the Claimant's consequent locus standi, is capable of determination on a notice of motion in the manner of a preliminary objection, without the taking of evidence; iii. Whether Gazette Notice No. 6024 contained in the Kenya Gazette, Volume CXX, No. 74 of 22nd June 2018, ousts the jurisdiction of this Court in respect of employees earning Kenya Shillings 80,000 and below; and iv. Whether the suit and the Verifying Affidavit, having been filed and sworn by Julius M. Maina in his capacity as General Secretary of the Claimant Union on behalf of the Union and the grievants, are competent. F. Analysis and Determination (i) Alleged defects in pleadings and the question of jurisdiction 1. The first plank of the Respondent's application is that the suit “in its entirety is incurably defective and an abuse of the Court process” by reason of the Verifying Affidavit not having been sworn by all eight grievants, and that this Court consequently lacks jurisdiction to entertain the suit at all. 2. The Court is not persuaded. Jurisdiction is a creature of the Constitution and statute; itis neither conferred nor extinguished by the form or sufficiency of a party's pleadings. This Court derives its jurisdiction from Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, and that jurisdiction, once properly invoked in respect of a dispute relating to employment and labour relations, is not divested merely because a supporting document is said to be irregular or defective in form. 3. A complaint that a Verifying Affidavit was not sworn by every claimant, or that particular documents were irregularly filed, is a complaint going to the form and regularity of pleadings; it is not, without more, a pure question of law touching on the existence or extent of this Court's jurisdiction. At its highest, and even if established, such a defect would entitle the Respondent to have the offending document, or the particular pleading, struck out; it cannot found a declaration that the Court lacks jurisdiction to hear and determine the suit as a whole. The Respondent's first prayer, founded as it is on the alleged defectiveness of the Claimant's documents, is accordingly misconceived and cannot stand. (ii) Membership of the Claimant Union as a question of fact 1. The second, and on the Respondent's own submissions the principal, plank of the application is that the eight grievants are not, and have never been, members of the Claimant Union, such that the Union lacks locus standi to sue on their behalf. 2. It is common ground, and indeed the authority relied upon by the Respondent itself confirms, that a trade union's authority to institute and maintain proceedings on behalf of persons it describes as its members is predicated upon those persons in fact being members of that union. Equally settled, however, is that whether a particular person is a member of a trade union is a question of fact, not law, to be determined only upon evidence being led and tested by cross-examination. The Court of Appeal in Modern Soap Factory v Kenya Shoe and Leather Workers Union, Civil Appeal No. 37 of 2019, at paragraph 17, was emphatic:- “We can see no reason therefore to fault the conclusion by the Judge that the respondent has locus standi to institute the claims on behalf of its members. That said, whether an employee is a member of a union is a question of fact. Where there is a contest as to whether an employee is a member of a union, evidence would be required to settle that question. It is not a matter that is amenable for determination on the basis of a preliminary objection.” 1. This Court respectfully associates itself with, and adopts, that holding. The Respondent's own authority, Kudheiha Workers v The Board of Management, Kihumbu-ini Secondary School [2015] KEELRC 880 (KLR), is entirely consistent with rather than opposed to this position. It was only after the grievant had testified and failed to produce evidence of payment of union dues that the Court, on a full evidentiary record, found want of membership and standing:- “The 1st issue for determination is whether the grievant is a member of the claimant union. The grievant testified that she joined the union in 2009 but did not file receipts to show that she had been remitting the relevant union dues. In the circumstances, the court finds that the grievant was not a member of the claimant union and the union could not file the suit on behalf of the grievant.” 1. That finding was reached at the conclusion of a hearing, upon sworn testimony tested in the ordinary way, and not upon a notice of motion filed before any evidence was taken. The authority cited by the Respondent may indeed prove relevant at the point of judgment, but its application depends entirely on what the evidence at trial discloses; it cannot be applied pre-emptively to shut out the Claimant's case before that evidence is heard and tested. 2. The Respondent's contention that the grievants' payslips (at pages 62 to 74 of the trial bundle) disclose no check-off deduction of union dues is, at this interlocutory stage, inconclusive rather than dispositive. Section 52 of the Labour Relations Act, 2007 expressly permits a member of a trade union to remit dues directly to the union:- “Nothing in this Part prevents a member of a trade union from paying any dues, levies, subscriptions or other payments authorised by the constitution of the trade union directly to the trade union.” 1. Further, the Claimant has placed on record, at pages 175 to 190 of the trial bundle, membership cards issued to the grievants, which the Respondent has neither addressed nor alleged to be falsified. Whether those cards, together with such further evidence as the parties may adduce, ultimately establish membership to the requisite standard is a matter properly left for trial and cross-examination. This position finds further support in Kenya Union of Commercial, Food and Allied Workers v Narugi Development Sacco Ltd [2023] KEELRC 3365 (KLR), where the Court, confronted with a similar challenge to standing raised only at the submissions stage, declined to treat a bare denial of membership as sufficient to displace evidence of membership placed before it, absent an allegation that such evidence was falsified. 2. It follows that the ground of want of union membership, however framed, cannot be determined in the Respondent's favour at this interlocutory stage. The proper course is for the question of the grievants' membership of the Claimant Union to be resolved at trial, upon evidence being taken and subjected to cross-examination. (iii) The Kenya Gazette, Volume CXX, No. 74 and the jurisdiction of this Court 1. The Respondent's third ground is that, since the grievants' salaries do not exceed Kenya Shillings 80,000, the suit contravenes Section 12 of the Employment and Labour Relations Court Act, as read with Gazette Notice No. 6024 contained in the Kenya Gazette, Volume CXX, No. 74 of 22nd June 2018. 2. This ground, too, is without merit. Section 12 of the Employment and Labour Relations Court Act confers upon this Court exclusive original and appellate jurisdiction over disputes relating to employment and labour relations. The Gazette Notice relied upon by the Respondent does not, and in law cannot, oust that jurisdiction; rather, it establishes a further and subordinate forum, namely the Magistracy, with concurrent jurisdiction to hear and determine employment disputes falling within the specified salary bracket. Its object and effect is to widen access to the resolution of employment disputes, not to divest this Court of jurisdiction the Constitution and Parliament have conferred upon it. 3. Read in light of Article 48 of the Constitution, which obliges the State to ensure access to justice for all persons, the Gazette Notice must be understood as an instrument facilitating that access by creating an additional avenue of redress for lower-income employees, and not as a jurisdictional bar operating to defeat suits properly instituted before this Court. The Respondent's construction of the Gazette Notice as ousting this Court's jurisdiction is rejected. (iv) Competence of the pleadings and Verifying Affidavit filed by Julius M. Maina 1. The final ground concerns the Respondent's prayer that all pleadings, affidavits and documents filed by Julius M. Maina be declared incompetent, null and void ab initio, on the footing that the suit and the Verifying Affidavit ought properly to have been filed and sworn by the eight grievants themselves. 2. This ground misconceives the character of the suit before the Court. The pleadings on record are filed by the Claimant, a registered trade union suing on behalf of its members, the grievants, and not by Julius M. Maina in his personal capacity. Mr Maina appears on the pleadings, and swears the Verifying Affidavit, in his capacity as the National General Secretary and duly authorised officer of the Claimant Union. It is well established that legal representation, and by extension the institution of suit, on behalf of unionised employees by their trade union is not merely permissible but is an obligation the trade union owes its members under its own constitution, and an aspect of the constitutionally protected right to associate. 3. This Court, per Rika J, so held in Kenya Hotels and Allied Workers Union v Diani SeaResort T/A Carslake Nominee Limited [2015] eKLR:- “Legal representation of individual Employees in Court and other Dispute Resolution Platforms is an obligation of the Trade Union, imposed by the Trade Union Constitution. It is a right of the Employee, which flows from his individual Membership of a Trade Union, normally guaranteed through the Trade Union Constitution. It is an aspect of the right to associate under the Constitution of Kenya. Section 22 of the Industrial Court Act 2011 grants Trade Union Representatives the right to represent their Members in Court. It was the same under the repealed Section 23 of the Labour Institution Act 2007. Under Section 62 of the Labour Relations Act 2007, trade disputes, including those relating to termination of employment, may be reported to the Minister by or on behalf of the Trade Union, that is a Party to the dispute; and by an authorized Representative of the Trade Union.” 1. The learned Judge, in Kenya Shoe & Leather Workers Union v Falcon Tanners Ltd, Nairobi Cause No. 826 of 2012, was equally clear:- “There is no legal obscurity on the right of representation of the Employees by the Trade Union. The law including the Industrial Court Act and the Labour Relations Act, as correctly argued by Mr. Maina, extends the right of representation of the employees in court, to the Trade Union, acting through its authorized officers.” 1. It follows that the suit, the pleadings, and the Verifying Affidavit were properly filed and sworn by Julius M. Maina, acting not in his personal capacity but as the authorised General Secretary of the Claimant Union suing on behalf of its members. There is no requirement in law that each of the eight grievants must individually swear the Verifying Affidavit or personally sign the pleadings before the suit can be said to be competent; to hold otherwise would be to deny trade unions the very representative function the law confers upon them, and would run contrary to the weight of authority considered above. This ground, too, fails. **G. Conclusion** 35. In the result, the Notice of Motion dated 11th July 2025 lacks merit in its entirety and is hereby dismissed. 1. On costs, there is no reason to depart from the general rule that costs follow the event. The costs of the application shall be borne by the Respondent. 1. The suit shall proceed to hearing on its merits, including on the contested question of the grievants' membership of the Claimant Union, which shall be determined upon the evidence adduced at trial. **DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF JUNE, 2026.** **OCHARO KEBIRA** **JUDGE**