https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1905

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT ELDORET** **CAUSE NO. E020 OF 2026** *(Before Hon. Lady Justice Maureen Onyango)* **KENYA PLANTATION AND AGRICULTURAL** **WORKERS UNION ……………………………..……….... CLAIMANT** **VERSUS** **FLORA OLA LIMITED …………………………..…… RESPONDENT** **RULING** 1. This ruling is in respect of an application dated 27th April, 2026 filed by the Claimant and a preliminary objection dated 6th May 2026 filed by the Respondent. **The Application** 1. In the Application dated 27th April, 2026 the Claimant seeks the following orders: 2. Spent. 3. THAT, pending the hearing and determination of this application inter partes, this Honourable Court be pleased to issue a temporary injunction and conservatory orders restraining the Respondent, whether by itself, its agents, assigns, servants and or representatives, from: * 1. Coercing, intimidating, threatening or harassing employees on account of union membership with the Claimant; 2. Dismissing, suspending, terminating and or declaring redundant any unionisable employee due to participation in trade union activities; 4. THAT a declaratory order do issue that the Claimant has attained the simple majority required under Section 54(1) of the Labour Relations Act, having recruited more than 51% of the Respondents unionisable employees. 5. THAT a declaratory order do issue directing the Respondent to forthwith recognize the Claimant union and execute a Recognition Agreement within seven (7) days from the date of the order, failing which execution to issue. 6. THAT an order be and is hereby issued directing the parties to commence negotiations towards concluding a Collective Bargaining Agreement(CBA)in accordance with the law. 7. THAT this Honourable Court be pleased to order the reinstatement of Bramwel Masinde, Joel Kurui and Eunice Nafula without loss of benefits, seniority or remuneration. 8. THAT, costs of this application be provided for. 9. The application is supported by the grounds at the foot thereof as follows: 10. THAT, The Respondent's actions constitute a deliberate and unlawful interference with trade union rights, including the right to organize, recruit and participate in union activities. 11. THAT, the summary dismissal of employees was affected without due process, in blatant violation of Section 41 of the Employment Act. 12. THAT, the dismissals were based purely on participation in union activities, rendering them automatically unfair under Section 46 of the Employment Act. 13. THAT, the Claimant has demonstrably achieved the statutory threshold for recognition, and the Respondent’s actions are aimed at frustrating this legal entitlement through intimidation and coercion. 14. THAT, unless restrained, the Respondent's conduct will continue to cause irreparable harm to employees and undermine the rule of law in industrial relations. 15. The application is further supported by the Supporting Affidavits of BRAMWEL MASINDE, EUNICE NAFULA, JOEL KIRUI and JOYCE MUTHONI all sworn on 27th April, 2026. The affiants all state that they are members of the Claimant union and employees or former employees of the Respondent. 16. In his affidavit BRAMWEL MASINDE deposes that he has been actively participating in the recruitment, mobilization and organization of unionisable employees of the Respondent, together with his colleagues Joel Kirui and Eunice Nafula. That together they made sustained efforts to sensitize employees on their constitutional and statutory rights, ultimately resulting in successful recruitment of over 382 employees out of an estimated workforce of 600 unionisable employees of the Respondent. 17. He deposes that in or about 21st April, 2026 he reported to work as usual with his colleagues but they were unlawfully locked out without explanation. That subsequently they were issued with letters of summary dismissal alleging involvement in union activities, which allegation was the sole reason for their dismissal. 18. Mr. Masinde states that the dismissals were undertaken without notice to show cause, disciplinary hearing or an opportunity to be heard, in violation of section 41 and 46 of the Employment Act. 19. He further deposes that the Respondent was threatening other employees with dismissal unless they withdrew from membership of the Claimant union. 20. In the affidavits of EUNICE NAFULA and JOEL KIRUI they largely reiterate the averments in the affidavit of BRAMWEL MASINDE. 21. In the affidavit of JOYCE MUTHONI, she deposes that she is a member of the Claimant union having joined its membership voluntarily, in exercise of her constitutional right to freedom of association. She deposes that she joined the union after being sensitized on her rights as an employee including the right to organize and participate in trade union activities. She deposes that she is aware that several other employees including Bramwel Masinde, Eunice Nafula and Joel Kirui were actively involved in mobilizing employees to join the union. That she is further aware that they had been locked out of their workplaces and subsequently summarily dismissed by the Respondent. 22. She deposes that following the dismissal of Bramwel Masinde, Eunice Nafula and Joel Kirui, the Respondent, through its management and supervisors, began issuing verbal and implied threats to employees, including warning that continued association with the Claimant would result in dismissal. That the threats created genuine fear that any employee who maintained membership of the Claimant would suffer similar consequences as those who had been dismissed. 23. She deposes that the conduct of the Respondent created an atmosphere of intimidation, fear and uncertainty within the workplace, making it extremely difficult for employees to freely exercise their constitutional rights. That in the prevailing atmosphere of fear she and other employees were compelled to, unwillingly, involuntarily and under duress for fear of losing their jobs and livelihoods, withdraw membership from the Claimant union. That the said conduct of the Respondents also caused other employees to refrain from joining the union membership. 24. She deposes that she is apprehensive that unless the court intervenes, the Respondent will continue to intimidate, coerce and victimize employees, completely eroding the freedom of association within the workplace, beseeching the court to intervene in order to protect employees from further suffering injustice. 25. The Respondent opposes the application through the Replying Affidavit of Mercy Kerich, the Respondent’s Human Resource Manager, sworn on 4th May, 2026. In the affidavit she deposes that the employees of the Respondent joined membership of Kenya Horticulture and Allied Workers (KEFHAWU) with whom the Respondent had concluded 3 successive CBAs until the union was deregistered. 26. She deposes that the Claimant served the Respondent with a check-off of 382 names of alleged employees of the Respondent out of which 55 employees were unknown to the Respondent, 63 names were duplicated and 3 names were for non-unionisable employees. 27. Ms. Kerich deposes that she declined to implement the Check-Off forms and caused employees to give written instructions before she could effect the union deductions. That no such instructions were received from any employee. 28. She further deposes that in order to address the issue she convened an emergency meeting of the Employees Dialogue Committee (EDC), which was attended by the Director of the Company due to its importance in addressing a potential go slow or strike action. 29. Ms. Kerich deposes that pursuant to the verification exercise her office received 188 resignation letters from the listed members while 70 employees confirmed having enlisted into membership of the Claimant union voluntarily. 30. TMs. Kerich deposes that during the EDC meeting it was established that most of the employees were enlisted during a meeting held at Jamaica Trading Centre which was also attended by political aspirants and that each employee was paid Kshs. 500 for attendance, and that Bramwel Masinde, Eunice Nanjala and Joel Kirui mobilized the company bus transporting workers from work and ferried them to the venue of the meeting without authority. 31. That at the end of the meeting she summoned the 3 employees for a meeting to her office to explain their conduct but they refused, upon which the Respondent decided to dismiss them. 32. She further deposes that she is aware that employees reported harassment and coercion by Bramwel Masinde, Eunice Nanjala and Joel Kirui and a report was made to Bahati Police Station vide OB No. 07/3/5/2026. 33. Upon being served with the Respondent’s Replying affidavit the further affidavit of Bramwel Masinde in which he deposes that the withdrawal and resignation from membership of the Claimant filed by the Respondent bear striking and extraordinary similarities in language, syntax, sentence construction, format and content that is not likely to be original from the employees of the respondent who originate from varying backgrounds, departments, ages, literacy levels and personal circumstances an indication that they were prepared from a common template, dictated, influenced, supervised or procured by persons acting on behalf of the Respondent. 34. Mr. Masinde further deposes that there is no demonstration of service of the letters upon the Claimant. 35. The application was disposed of by way of written submissions. **The Preliminary Objection** 1. The Notice of Preliminary Objection is on the ground that this court lacks jurisdiction to hear and determine this suit as the cause of action arose outside the territorial jurisdiction of this court. 2. The Claimant filed a replying affidavit in opposition to the preliminary objection which I will not look at as a preliminary objection by definition, does not require evidence as it is supposed to be determined on the basis of pleadings on record. The preliminary objection, like the application, was disposed of by way of written submissions. Both parties filed their submissions which I have considered. **Determination** 1. It is trite that where a preliminary objection has been raised in a suit, especially where it raises issues of jurisdiction, the preliminary objection must take precedence over all other activities in the file because where a court has no jurisdiction, it must make no further move and must down its tools, as was held in **Owners of the Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd [1989]** 2. The legal test of what constitutes a preliminary objection was set out in *Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd (1969)* where the court opined: *“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if urged as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” Per LAW JA.* 1. In the instant preliminary objection, the Respondent who raised the objection submits that Rule 6 of the Employment and Labour Relations Court (Procedure) Rules provides for cases to be filed where- (a) the claimant, petitioner or applicant, at the time of commencement of the proceedings, actually and voluntarily resides or carries on business or personally works for gain; or (b) the cause of action, wholly or in part, arises 1. The Respondent has not yet filed a response to the Memorandum of Claim. These means that the only pleadings on record are those filed by the Claimant. 2. I have carefully read the pleadings on record and there is no mention in the pleadings of the place where the cause of action arose or where the Claimant or Grievants voluntarily reside, work, or carry on business. 3. As stated in the case of **Mukisa Biscuit Manufacturing Co. Ltd**(supra), a preliminary objection consists of a point of law***which has been pleaded or which arises by clear implication out of pleadings.*** 4. Further, the court in the said case stated- *“… a preliminary objection is in the nature of what used to be a demurrer.* ***It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion****”.* 1. The Claimant has denied the averments of the Respondent that this court does not have territorial jurisdiction. In the circumstances, the court will require evidence to determine the issue of jurisdiction, in which case the issue does not consist of a pure point of law that is determinable from the pleadings in court without production of evidence. It is also evident that parties are not agreed on the facts as the Claimant denies the averments of the Respondent. 2. I accordingly find that this is not a matter suitable for determination through a preliminary objection. In the result, the preliminary objection fails. **The Application** 1. In the application, according to the prayers already set out above and the submissions, the Claimant seeks temporary injunction and conservatory orders restraining the Respondent from intimidating, coercing, threatening or harassing its members, dismissing, suspending, terminating, and declaring redundant any of its members on account of union activities, or in any manner whatsoever interfering with employees’ constitutional right to freedom of association. 2. The Claimant further seeks a declaration that it has attained a simple majority in the recruitment of members among the unionisable employees of the Respondent, an order directing the Respondent to recognize the Claimant and an order compelling the Respondent to negotiate a collective agreement with the Claimant and lastly, reinstatement of Bramwel Masinde, Eunice Nanjala and Joel Kirui. 3. The principles applicable in temporary injunctions were set out in **Giella v Cassman Brown & Co Ltd [1973] EA 358**. The applicant must demonstrate that they have a strong case with a probability of success, and that they will suffer harm that cannot be adequately compensated by an award of financial damages later. If the court is in doubt regarding the first two conditions, it will decide whether to grant the injunction based on where the "balance of convenience" lies. 4. In the instant case, it is not contested that there have been dismissals of employees on account of union activities. The letters of dismissal of Bramwel Masinde, Eunice Nanjala and Joel Kirui state in part *“Further several complaints have been received from workers accusing you alongside other employees of* ***enlisting them into*** *political activities and* ***union membership*** *against their will.”* 5. Further, in the supporting affidavits of the three employees who have been dismissed filed by the Claimant they depose that the dismissals were on account of their union activities. These are serious allegations which the court ought to determine, especially because participation in union activities is a constitutional right protected by both the Constitution and the Labour Relations Act. Further, dismissal on account of union activities is expressly prohibited in section 46 of the Employment Act. 6. From the foregoing the court is satisfied that the Claimant has demonstrated that it has a strong case with probability of success, and that the rights of its members to enjoy their constitutional and statutory rights of association and union membership as well as participation in union activities is under threat. Breach or threatened breach of constitutional rights is a serious threat of the constitution that this court has an obligation to respect, uphold and defend. 7. The prayers relating to recognition of the Claimant, negotiation of collective agreement, and the reinstatement of Bramwel Masinde, Eunice Nanjala and Joel Kirui, the court will require to hear evidence of the parties and therefore cannot determine the issues at preliminary stage as has been correctly pointed out by the Respondent. Further, deciding these issues at this stage would mean that there would be no issue to be determined at the hearing of the Claim. The court is further cognizant of the provision in the Employment Act and in the Employment and Labour Relations Court Act and rules that reinstatement can only be ordered once the court determines that the termination was unfair, which cannot be done at interlocutory stage before hearing evidence from the parties. **Conclusion and Orders** 1. For the reasons stated herein above, the court makes the following order: 1. The preliminary objection dated 6th May 2026 filed by the Respondent is dismissed. 2. The Respondent by itself, its agents, assigns, servants and or representatives are hereby restrained from intimidating, coercing, threatening or harassing its members, dismissing, suspending, terminating, and declaring redundant any of its members on account of union activities, or in any manner whatsoever interfering with employees’ constitutional right to freedom of association pending hearing and determination of this suit. 2. All other prayers in the application not expressly granted are declined 3. Orders accordingly. **DATED, SIGNED AND DELIVERED** **ON THIS 3RD DAY OF JULY 2026** **M. ONYANGO** **JUDGE**