https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2373

REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU ELRC CAUSE NO. E049 OF 2024 (Before Hon. Lady Justice Anna Ngibuini Mwaure) KENYA PLANTATION & AGRICULTURAL WORKERS UNION ……….….. …..CLAIMANT VERSUS FLAMINGO HORTICULTURE KENYA LIMITED (Flamingo Farm) ………..…. …..RESPONDENT RULING Introduction 1. The Respondent/Applicant filed a Notice of Motion dated 27th July 2026 under Certificate of urgency on the following orders that: a.Spent b.The Honourable Court be pleased to hear and determine this matter in the first instance, and service of the application be dispensed with before court breaks for vacation. c. The Honourable Court be pleased to order stay of execution of the ruling and orders of court given on 26th June 2026 pending the hearing and determination of this application. NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 1 | P A G E d.The Honourable Court be pleased to review, vary, clarify and/or set aside paragraph 17(a) of the court’s ruling dated 26th June 2026 stating: “That the Commissioner of Labour, through the County Labour office in Naivasha, is hereby directed to carry out a ballot of the Claimant’s unionisable employees within the next 45 days in a secret ballot.” e.The review be in the following terms: “17(a) That the Commissioner of Labour is hereby directed to carry out a ballot of the Claimant’s unionisable employees within the next 45 days in a secret ballot.” f. The Honourable Court be pleased to grant such other or further orders or relief as it may deem fit and expedient in the circumstances. g.The costs of this application be in the cause. 2. The application is brought under Rule 74(1)(a), (b),(c), & (d), (2) and (3) of the Employment and Labour Relations Court (Procedure) Rules, 2024, section 3 of the Employment and Labour Relations Court Act, Article 159(2)(d) & (e) of the Constitution of Kenya and all enabling provisions of the law. NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 2 | P A G E Respondent/Applicant’s supporting affidavit 3. The application is supported by the affidavit of Audrey Namwakira, the Respondent’s Legal Officer, dated even date as the application. 4. The Respondent avers that it is seeking the Honourable Court to review and clarify paragraph 17(a) of its ruling delivered on 26th June 2026. The ruling directed the Commissioner of Labour, through the Naivasha Sub-County Labour Office, to conduct a secret ballot among the Claimant’s unionisable employees within forty-five days. 5. The Respondent/Applicant contends that the Naivasha Labour Officer lacks jurisdiction beyond Naivasha Sub-County, yet the Respondent’s over 9,000 unionisable employees are distributed across four farms, Flamingo and Kingfisher in Nakuru County, and IBIS and Siraji in Meru County, making full compliance impossible. 6. The affidavit further notes that the ballot scheduled for 8th August 2026 has already caused unrest among employees at IBIS and Siraji farms, who fear exclusion, and argues that the court’s ruling erroneously assigned the task to a non-existent NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 3 | P A G E County Labour Office in Naivasha instead of the Commissioner of Labour. 7. The Respondent therefore urges the court to vary and clarify its orders to direct the Commissioner of Labour to oversee the ballot across all four farms, ensuring inclusion of all eligible unionisable employees. 8. The Respondent is also seeking a stay of execution of the ruling and the ballot until the orders are reviewed to prevent a futile exercise, emphasizing that granting the application would be just, convenient, and in the interest of justice without prejudicing the Claimant. Claimant’s replying affidavit 9. The Claimant opposed the application vide a replying affidavit sworn by Nelly Peris Ashubwe, the Claimant’s Union Advocate, dated 3rd August 2026. 10. The Claimant underscores that the Respondent, having already lodged a Notice of Appeal on 6th July 2026 against the ruling of 26th June 2026, cannot simultaneously pursue review, as appeal and review are mutually exclusive remedies under the Civil Procedure Rules. NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 4 | P A G E 11. While conceding that a limited clarification of paragraph 17(a) may be permissible, the Claimant insists that the secret ballot must remain confined to Kingfisher Farm, the locus of the dispute, rather than being expanded to IBIS and Siraji Farms, which were never parties to the proceedings. 12. The Claimant avers that the Naivasha Sub-County Labour Officer is competent to conduct the ballot scheduled for 8th August 2026, dismisses the Respondent’s claims of jurisdictional defects and alleged unrest as speculative and irrelevant, and warns that attempts to broaden the scope of the orders amount to an afterthought designed to frustrate justice. 13. The Claimant further avers that delaying or staying the ballot would prejudice thousands of unionisable employees by denying them representation and prolonging workplace grievances. 14.Ultimately, the Claimant characterizes the application as frivolous, vexatious, and calculated to obstruct the court’s orders, urging its dismissal with costs to safeguard the integrity of the judicial process and the rights of the employees. NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 5 | P A G E 15. On 4th August 2026, the matter came up for oral submissions. Counsel for the Respondent, Ms. Agwana holding brief for Prof. Albert Mumma, senior counsel, submitted that the secret ballot scheduled for 8th August 2026 was ordered to be conducted by the Sub-County Labour Officer in Naivasha, who she argued has jurisdiction over all the Respondent’s farms, including those in Meru, and therefore, sought a stay of the balloting. 16. In reply, counsel for the Claimant, Miss Owino, objected to the stay application, pointing out that the Respondent had already filed a Notice of Appeal dated 6th July 2026 and was improperly attempting to pursue both appeal and review simultaneously. She stated that while the Claimant did not oppose prayers 4 and 5 of the application, which sought review of paragraph 17(a) of the ruling of 26th June 2026, such review should be limited to the Naivasha Labour Office and confined to Flamingo and Kingfisher farms, as IBIS and Siraji farms in Meru were not parties to the proceedings and fell outside the jurisdiction of the Naivasha Sub-County Labour Officer. 17.In rebuttal, counsel for the Respondent argued that since all employees across the four farms are under NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 6 | P A G E one payroll, the ballot should include them all, and maintained that review is not barred unless a record of appeal has been filed. The Respondent therefore urged the court to grant prayer 3 alongside prayers 4 and 5, so that the ballot would cover all employees of the Respondent. 18. Due to constraints of time the Parties did not file written submissions but they made oral submissions before the court. There was little time because the court was informed the election by secret ballot were scheduled for 8th August 2026. Analysis and determination 19.The court has considered the application, supporting affidavit, replying affidavit and oral submissions on record; the issues for determination are as follows: i. Whether counsel for the Claimant had locus standi to swear an affidavit on behalf of the union. ii. Whether there are valid grounds to justify review of the court orders. iii. Whether the notice of appeal and review can be dealt with concurrently or ought to be perused separately. iv. Who should bear the costs of the appeal. NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 7 | P A G E 20. In Musau & 2 Others v Kiamba [2025] KEELC 3525 (KLR) the court stated as follows: “The law on affidavits touching on contentious matters is found in Halsbury’s Laws of England 3rd Edition paragraph 84 which states as follows: “Affidavits filed in the High Court must deal only with facts which the witness can prove of his own knowledge, except that in interlocutory proceedings or with leave, statements as to a deponent’s information or belief are admitted, provided the sources and grounds thereof are stated. For the purpose of this rule, those applications only are considered interlocutory which do not decide rights of the parties but are made for the purpose of keeping things in status quo till the right can be decoded, or for purpose of obtaining some direction of the court as to the conduct of the cause.” Order 19 Rule (3) of the Civil Procedure Rules states as follows: Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove: NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 8 | P A G E Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof. Further the advocate (practice) Rules 1966 states as follows: “No advocates (practice) Rule, 1966 states that in any matter in which he has reason to believe that he may be required as a witness to give evidence, whether verbally or by declaration or affidavit; and if while appearing in any witness to give evidence whether verily or by declaration of affidavit, he shall not continue to appear provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter of fact in any matter in which he acts or appears”. 21.In Francis Kimutai Bii v Kaisugu (Kenya) Ltd [2016] KEELRC 1758 (KLR) the court cited the case of Regina Waithira Mwangi Gitau v Boniface Nthenge [2015] KEHC 2475 (KLR) which stated as follows: “On issue number one, the established principle of law is that advocates should not enter into the arena of the dispute by NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 9 | P A G E swearing affidavit on contentious matters of fact. By swearing an affidavit on contentious issues, an advocate thus makes himself a viable witness for cross examination on the case which is he handling merely as an agent which practice is irregular. In Simon Isaac Ngugi Vs. Overseas Courier Services (K) Ltd 1998 eKLR and Kisya Investments Ltd & Others Vs Kenya Finance Corporation Ltd, it was held that: “......................... it is not competent for a party's advocate to depose to evidentiary fact at any stage of the suit.” In addition, Rule 9 of the Advocates Practice Rules prohibit advocates from appearing as an advocate in a case wherein he might be required to give evidence either by affidavit or even orally. By swearing an affidavit on behalf of his client where issues are contentious, an advocate's affidavit creates a legal muddle with untold consequences. However, where an affidavit by an advocate raises issues of law and fact which are within his knowledge having been an advocate handling the suit on behalf of the party on whose behalf the affidavit is sworn there is absolutely no mistake or error in the affidavit that can render it defective.” NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 10 | P A G E 22.In the instant matter, the court observed that the dispute is contentious, centering on whether a secret ballot ought to be conducted. The affidavit in the opposition of the application was sworn by a Counsel instead of an official of the union. An advocate can by no means depone to matters within his knowledge so long as they are matters that are legal and the Counsel is not likely to be called as a witness to give evidence to the matters deponed thereon. In such circumstances, Counsel assumes the role of a witness and cannot purport to adduce evidence through affidavit. The court is persuaded by case of REGINA WAITHIRA MWANGI GITAU -vs- BONIFACE NTHENGE (Supra) that “an advocate can depone an affidavit that raises issues of law and facts within his knowledge..............” 23. The affidavit sworn by the Respondent’s legal officer raises matters of law and also clearly facts that are within her knowledge. The court finds no reason to reject the affidavit she deponed. 24.As pertains to the review of Court’s Ruling, Section 16 of the Employment and Labour Relations Court Act provides as follows: NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 11 | P A G E “The Court shall have power to review its judgements, awards, orders or decrees in accordance with the Rules.” 25. Rule 74(1) of the Employment and Labour Relations Court (Procedure) Rules 2024 provides as follows: “A person who is aggrieved by a decree or an order from which an appeal is allowed but from which no appeal is preferred or from which no appeal is allowed, may within reasonable time, apply for a review of the judgment or ruling: (a) if there is discovery of a new and important matter or evidence which, despite the exercise of due diligence, was not within the knowledge of that person or could not be produced by that person at the time when the decree was passed or the order made; (b) on account of some mistake or error apparent on the face of the record; (c) if the judgment or ruling requires clarification; or (d) for any other sufficient reason.” 26. In this instant case, the Applicant is seeking clarification of the meaning of the order set out in paragraph 17(a) of the Ruling delivered on 26th June 2026, which reads as follows: NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 12 | P A G E “That the Commissioner of Labour, through the County Labour office in Naivasha, is hereby directed to carry out a ballot of the Claimant’s unionisable employees within the next 45 days in a secret ballot.” 27.The Court’s interpretation of the order is unequivocal: The Commissioner of Labour, through the Labour Office in Naivasha, was directed to conduct a secret ballot among the Claimant’s unionisable employees within 45 days. This directive is clear and leaves no room for ambiguity, hence the Court is not persuaded by the Applicant’s application for review. Moreover, the Respondent has already filed a Notice of Appeal dated 6th July 2026, and as established in National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR) and Swai v Kenya Breweries Limited [2014] KECA 883 (KLR), a review cannot be used to correct an alleged error of law or serve as an appeal in disguise. The court will not even address the question of whether an Applicant can file a review and appeal at the same time. The court will confine itself to the matters review of application only. NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 13 | P A G E 28. In this case, the Court emphasizes that the order for secret ballot is confined to the two farms in Naivasha “Flamingo” and “Kingfisher” as the Meru farms, to which IBIS and Siraji were situate are not parties to the proceedings and even fall outside the court’s territorial jurisdiction. This application in particular refers to “Flamingo” and “Kingfisher” farms only. Regarding the application for stay under Order 42 Rule 6 of the Civil Procedure Rules, the court finds no merit in the Respondent’s explanation. There is no error in the Court’s Ruling and neither are there any new matters presented to court to justify review. The Respondent/Applicant is introducing new matters that were not part of these proceedings at any point as the IBIS and Siraji farms were not part of these proceedings and not even at the hearing before the Concilliator. 29. Flowing from the foregoing, the court finds that the application for review lacks merit and is dismissed. 30. Each party is to bear its own costs. Orders accordingly. Dated, Signed and Delivered virtually at Nakuru this 7th Day of August, 2026. NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 14 | P A G E ANNA NGIBUINI MWAURE JUDGE ORDER In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 15 | P A G E A signed copy will be availed to each party upon payment of Court fees. ANNA NGIBUINI MWAURE JUDGE NAKURU ELRC CAUSE NO. E049 OF 2024 RULING 16 | P A G E