https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1963

Kenya County Government Workers Union v County Government of Busia & 4 others (Cause E041 of 2024) [2026] KEELRC 1963 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1963 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kakamega Cause E041 of 2024 DN Nderitu, J July 9, 2026 Between Kenya County Government Workers Union Claimant and County Government of Busia 1st Respondent County Offficer Finance County Government Of Busia 2nd Respondent County Executive Committee Members For Fincance, County Government Of Busia 3rd Respondent County Secretary, County Government Of Busia 4th Respondent The Governor, County Government Of Busia 5th Respondent Ruling I. Introduction 1.In a memorandum of claim dated 20th December 2024 filed through James Oketch & Co. Advocates, the Claimant is seeking for the following reliefs –a.A declaration do issue that the rights of the claimant’s members under Article 41 of the Constitution of Kenya, 2010 as read with Section 48 and 50 of the Labour Relations Act No. 14 of 2007 and Section 19 of the Employment Act, 2007 have been violated by the Respondents.b.An order do issue compelling the Respondents to furnish the Claimant with a certified Statement of Accounts together with the full schedule of the paying members in relation to the Claimant’s deducted and remitted union dues from 2013 to date.c.An order to issue restraining the Respondents from withholding any union dues payable to the Claimant forthwith.d.An order do issue compelling the Respondents to remit and/or pay from their own funds all union dues to the Claimant and for the year between 2013 and 2021 in the sum of Kenya Shillings Six Million, Six Hundred and Forty-Four Thousand, Five Hundred and Seventy (Kshs.6,644,570/=) together with all outstanding union dues, to the specified bank account as scheduled in the Gazette Notice No.10698 of 2013.e.An award of general damages against the Respondents for the violation of and or breach of the Claimant’s members’ Constitutional rights.f.Fines to issue against the Respondents pursuant to Section 82 of the Labour Relations Act. No. 14 of 2007.g.Costs of the suit and interest on the sums awarded at Court rates from the date of default be awarded to the Claimant.h.Any other relief that the court may deem fit to grant. 2.Upon service, the Respondents entered appearance through the County Attorney but did not file a response to the claim. 3.However, the Respondents filed a notice of preliminary objection (PO) dated 24th November 2025. The notice was amended on 11th December 2025 raising the following issues for preliminary determination by the court –1.That to the extent that the Claim is concerned with alleged non-remittance of union dues of the Claimant’s members based on a contract of or for service of employment between Claimant’s members and the 1st Respondent this court lacks jurisdiction to hear and determine this matter as it is time barred under section 89 of the Employment Act which proceed that such matter should be commenced within 3 years next after the act.2.That to the extent that the Claimant’s claim is founded on a contract/agreement or a Collective Bargaining Agreement/and or failure to remit the workers contribution to the Claimant, this court lacks jurisdiction to hear and determine this matter as the same is time barred under section 3(2) of the Public Authorities Limitations Act which provides that no proceedings founded on contract shall be brought against the Government and or Local authority after the end of three (3) years from the date on which the cause of action accrued.3.That to the extent that the claim is concerned with alleged violation of a contractual agreement and or a Collective Bargaining Agreement between the Claimant and the 1st Respondent, this court lacks jurisdiction to hear and determine this matter as the same is time barred under section 4 of the Limitations Act which provides that an action founded on contract shall be brought after the end of six (6) years from the date which the cause of action accrued. 4.Further, the Respondents filed a Notice of Motion dated 24th November 2025 (the application) seeking for the following orders –1.That the Respondents/Applicants be granted leave to file a response to the claim out of time.2.That the Honourable court be pleased to grant an order of stay of proceedings in the matter pending hearing and determination of this application.3.That upon grant of prayer one (1), the court do give the Applicants 14 days to file and serve their Response to the Claim, list of documents and list of witnesses.4.That costs of this application be provided for. 5.The application is based on the grounds on its face and supported with the affidavit of Ahmed Hefow, a chief officer with the 1st Respondent, with one annexure attached in the form of a draft response to the claim. 6.In response to the application, the Claimant filed a replying affidavit sworn by Roba S. Duba, the National General Secretary of the Union, on 18th December 2025, with several annexures thereto. 7.Since the PO attacked the jurisdiction of the court to hear and determine the cause and, the application is seeking leave for the Respondents to file a response to the claim out of time, the court directed that the two be heard simultaneously and be canvassed by way of written submissions. 8.Mr. Mabachi for the Respondents filed written submissions dated 9th January 2026 in support of the PO and the application. Mr. Oketch for the Claimant filed written submissions dated 9th February 2026 in opposition to the PO and the application. II. Evidence 9.In the supporting affidavit to the application, it is stated that the Respondents were served with the claim on 20th December 2024 and entered appearance on 13th January 2025. It is deposed that the Respondents were not able to file a response to the claim as the requisite documents to the claim had been lost to a fire in 2019. 10.It is further deposed that the delay in filing a response was not intentional or meant to cause delay in the disposal of the matter but rather it was due to loss of vital documents and information in the alleged fire. 11.The deponent pleads that the Respondents be allowed to file a response to the claim as per the draft attached to the affidavit for a merited hearing and determination of the claim. 12.In the replying affidavit, it is deposed that service of the court process is duly admitted by the Respondents in the supporting affidavit to the application. It is further deposed that on all the occasions that the matter came up in court, at no point did the Respondents inform the court of a fire that occurred in 2019 that allegedly destroyed records or documents. It is deposed that this allegation has been made to cover up for the deliberate ploy by the Respondents to delay the hearing and disposal of the cause. 13.It is deposed that the draft response to the claim annexed to the application raises no triable issue(s) and contains only mere denials. 14.It is further deposed that as at the time of the filing of the application and the PO, the matter was pending the filing of submissions on the claim as the court had on 23rd September 2025 issued directions that the cause be heard and canvassed by way of written submissions under Rule 59 of the Employment and Labour Relations Court (Procedure) Rules. 15.It is denied that the claim is time-barred and the court is urged to dismiss the PO. III. Submissions 16.Counsel for the Respondents submitted that the PO has merits and that the court lacks jurisdiction to hear and determine the matter. Counsel cited Mukhisa Biscuits Manufacturing Company Ltd V West End Distributors Ltd (1969) EA 696 and Owners of Motor Vessel Lilian “S” V Caltex Oil (Kenya) Ltd (1989) KLR in defining a PO and the essence of jurisdiction of a court in handling matters before it. 17.It is submitted that a PO may be raised even where no response has been filed to the claim so long as the PO is based on a pure point(s) of law. It is submitted that the claim and orders sought in the cause are time-barred under Section 89 of the Employment Act. It is submitted that the collective bargaining agreement (CBA) upon which the action is based was entered into on 12th October 2012, 11yrs before the claim was filed in court. 18.Citing Njunge V Muasya (2024) KEELRC 265 (KLR), it is submitted that the limitation of three years under Section 89 of the Employment Act cannot be extended. Counsel further cited Maweu V Safaricom Ltd (2025) KEELRC 1441 (KLR) in support of that same argument. 19.It is further submitted that the claim is time-barred under Section 3(2) of the Public Authorities Act to the extent that actions based on contracts shall not be filed against a government or a local authority after expiry of three years. It is submitted that the three-year period cannot be extended and Counsel cited County Government of Trans-Nzoia V Medix East Africa Limited (2025) KEHC 12948 (KLR) in support of that position. 20.It is further submitted that even if the Court was to apply the Limitation of Actions Act, the six years within which a contract should be enforced expired long before this action was filed in court in December 2024. 21.It is further submitted that contrary to the argument by the Claimant’s counsel, the alleged breach has not been continuous and hence the principle of continuous breach or violation under Section 89 of the Employment Act does not apply. It is submitted that the CBA between the parties is no longer binding as the same expired after the parties failed to negotiate and agree on a new one. 22.On the application, it is submitted that as per the supporting affidavit, it is conceded that the claim was served upon the Respondents and an appearance entered on 13th January 2025. 23.It is reiterated that a fire destroyed the offices of the Respondents wherein vital and relevant documents were lost and as such it was not possible for them to file the response on time. The court is urged to apply Articles 48 & 159 of the Constitution and Sections 1A, 1B, & 63 of the Civil Procedure Act, and Order 50 Rule 5 of the Civil Procedure Rules and give to the Respondents an opportunity to defend the claim. 24.It is submitted that the Claimant shall not suffer any prejudice if the Respondents are allowed to the defend the claim on merits. Counsel cited several decisions in support of the foregoing arguments including Kalemera V Salaama Estates Ltd (1971) EA and Mugo Riakathari V Muthike Miano & 2 Others (2019). 25.It is submitted that the Claimant has been indolent in prosecuting the matter as no date was fixed for hearing of the cause. It is further submitted that the Claimant may be compensated by way of costs for any inconvenience suffered. 26.Counsel for the Claimant identified the following issues for determination –a.What constitutes a Preliminary objection on a point of law?b.Whether the Respondents’ Preliminary Objection is merited?c.Whether the Respondents can file a Response to the Claim out of Time?d.Whether the Respondents are entitled to the prayers sought in the Applications? 27.Citing Mukhisa Biscuits Manufacturers Ltd V Westend Distributors Ltd (supra) and other decisions that followed the ratio therein, it is submitted that a PO should be raised on pure point(s) of law only, on the assumption that all the facts as pleaded are not in dispute and, the PO should not call upon the discretion of the court in making the decision thereon. 28.It is submitted that the claim as filed is based on a CBA that is still binding on the parties. It is argued that it is the terms and conditions of that CBA that the Respondent has violated and continues to breach. It is submitted that for the court to determine the dispute, it has to investigate and interpret the said CBA and make its own observations and conclusions. It is thus submitted that this is not an appropriate matter for determination and disposal by way of a PO as purported and raised by the Respondent. 29.Further, it is submitted that the subject matter is within the jurisdiction of this court. It is submitted that the Respondent is in continuous breach and violation of the CBA between the parties and hence the claim is not restricted to the three years limitation provided for under Section 89 of the Employment Act and Section 3(2) of the Public Authorities Limitation Act. 30.It is emphatically submitted that the CBA is clear that it was to remain in force until such a time as the parties negotiated and executed a new CBA. Counsel cited Mukiria Farmers Co-operative Society Ltd V Jacob Rukaria & 5 Others (2017) KECA 432 (KLR) in support of the argument that parties to a CBA are bound by the terms thereof and neither party can unilaterally opt out of the same. 31.For the foregoing reasons, the court is urged to dismiss the PO and allow the claim to proceed to hearing. 32.On the application by the Respondent to defend the claim out of time, it is submitted that Rule 29 of the Employment and Labour Relations Court (Procedure) Rules provides that a respondent shall respond to a claim within 28 days or such other shorter time as the court may order in urgent matters. It is submitted that the record confirms that the Respondents entered appearance but failed to defend the cause notwithstanding that their counsel appeared severally in court and the Court extended the period for them to file the response on numerous occasions. 33.It is submitted that when the matter came up in court for hearing on 23rd September 2025, counsel for the parties consented to the matter being heard and canvassed by way of written submissions. It is further submitted that while the court was awaiting the filing of the submissions, the Respondents filed the application in bad faith and with the clear intention and purpose of delaying the conclusion of the matter. 34.It is submitted that in the circumstances the Respondents are not deserving of the court to exercise its discretion in their favour to allow filing of a reply of the claim out of time. 35.The court is urged to dismiss both the PO and the application with costs. IV. Analysis & Determination 36.The facts and the circumstances leading to the filing of this cause in court are presumably as presented by the Claimant in the memorandum of claim as the same are not disputed by way of a response or defence. As far as the record shows, the Respondents only filed the PO in response to the claim. In the circumstances, the court prima facie presumes that the facts as presented by the Claimant are correct and undisputed. 37.As far as the PO goes, the court returns that the same is without merit. The court has examined the CBA between the parties and established that the same was to remain in force until another one is negotiated, agreed, and signed. In my considered view, the action by the Claimant is based on the Respondents’ purported continuous violation, abuse, and breach of the terms of the said CBA. That is not an action that is subject to the three-year period provided for under Section 89 of the Employment Act or Section 3(2) of the Public Authorities Limitation Act or Section 4 of the Limitation of Actions Act. 38.In any event, the PO is not based on pure points of law or uncontested facts that illuminate enough for this court to determine the matter by way of the PO or summary trial – see Mukhisa Biscuits Manufacturers Ltd V Westend Distributors Ltd (supra) on the ingredients and essentials of a proper PO. 39.The PO is devoid of merits and the same is hereby dismissed. 40.Likewise, the application for leave to allow the Respondents to defend the claim out of time is incompetent, filed in bad faith and taste, and intended to delay the hearing and conclusion of this matter. 41.On 15th January 2025, the Respondents were given 14 days to respond to the claim. This direction was issued in the presence of Mr. Mabachi, Counsel for the Respondents. On 11th February 2025, in the presence of Miss Otsieno, holding brief for Mr. Mabachi for the Respondents, the Court noted that the Respondent had failed to file a response to the claim and Mr. Oketch for the Claimant prayed that the matter be fixed for formal proof. The matter was then fixed for formal proof on 4th March 2025. 42.On 4th March 2025 the matter was mutually removed from the cause-list to allow time for negotiations and a possible settlement out of court. The Respondents were again given seven days to file and serve their response to the claim. 43.By 3rd April 2025 when the matter came up again in court for mention, the Respondents were again given a further 14 days to file a response to the claim. Thereafter, the matter came up in court severally for mentions but the Respondents did not file a response to the claim. No reasons were ever given for their delay in filing of the response. During the entire period above, there was no mention of a fire in 2019 that allegedly consumed documents or records. 44.On 23rd September 2025 when the matter came up for hearing, more or less for formal proof as no response had been filed, it was by consent agreed that the cause be heard by way of written submissions. This consent was recorded in the presence of Mr. Oketch for the Claimant and Mr. Mabachi for the Respondents. 45.Counsel for the Claimant filed and served written submissions but Counsel for the Respondent did not file. On 19th November 2025 when the matter came up for mention to confirm the filing of the written submissions, Counsel for the Respondent requested for and was granted a further 14 days within which to file and serve the written submissions. Again, no submissions were filed. 46.It is when the matter came up for mention on 10th December 2025 for the Court to give a date for judgment, that Counsel for the Respondents informed the Court that an application had been filed requesting that the Respondents be allowed to file a response out of time. 47.The court has gone through the above chronology of events to demonstrate the blatant, intentional, and raw abuse of the court process by the Respondents. During the entire period of almost one year covered above, the Respondents did not express any difficulties that they were facing in obtaining relevant documents or records to enable the filing of a response to the claim. Further, there was no allegation or mention of an alleged fire that had destroyed or consumed records in 2019 or any other time or at all. 48.This is a classic example of the Respondents assuming, may be even believing, that they have a blank cheque to violate and neglect court orders and directions with impunity without facing any consequences. There is no evidence that any fire occurred as claimed by the Respondents. There is no report or evidence of such fire from police or any other authority. And yet, the Respondents expect the court to buy into such blatant lies. It is a shame that persons entrusted with public authority no longer care of the consequences of their conduct, or actually misconduct. 49.It is the finding and holding of this court that the Respondents have engaged in a time-wasting wild goose chase without due consideration of how precious time is to this court and in every judicial process. The application is such a waste to time and a boring inventory that at best may only be described as foolish and laughable. I say no more, as the application is devoid of any merits and the same is hereby dismissed.Ordersi.The Amended Notice of Preliminary Objection by the Respondents dated 11th December 2025 is hereby dismissed with costs to the Claimant.ii.The Notice of Motion by the Respondents dated 24th November 2025 is hereby dismissed with costs to the Claimant.iii.The Court shall allocate the matter a date for judgment. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 9TH DAY OF JULY 2026.....................................DAVID NDERITUJUDGEELRC KAKAMEGA