https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1942

Kenya Union of Commercial, Food & Allied Workers v Coca Cola Beverages Ltd (Cause E143 of 2026) [2026] KEELRC 1942 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELRC 1942 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E143 of 2026 CN Baari, J July 9, 2026 Between Kenya Union of Commercial, Food & Allied Workers Applicant and Coca Cola Beverages Ltd Respondent Ruling 1.Before Court is the Claimant/Applicant’s motion application dated 12th February, 2026, brought pursuant to Section 12 of the Employment and Labour Relations Court Act, 2011, Section 87 of the Employment Act, 2007, Sections 57(1) & (6) & 59(1) & 4) of the Labour Relations Act, 2007, Articles 41 (I) & (2b) of the Constitution of Kenya, 2010, and Rule 44 of the Employment and Labour Relations Court (Procedure) Rules 2024. The Applicant seeks orders THAT: -i.Spentii.Pending the hearing and determination of this suit, the Honourable Court do issue interim orders directing the Respondent to include all the spouses nominated by employees who are now denied the right to benefit from the Company Medical Scheme.iii.The Honourable Court do certify that the hearing of the main suit is urgent deserving to be heard on priority basis.iv.Cost of this Application be in the cause. 2.The application is supported by grounds on the face thereof and the affidavit of Mike Oranga, sworn on 12th February, 2026. 3.The Applicant states that the parties herein have a valid Recognition and Negotiating Procedure Agreement, reviewed every two years alongside the Collective Bargaining Agreement (CBA), with the latest being effective from 1st January 2023. It avers that the 2023–2024 CBA remains in force under Clause 43 pending the resolution of Trade Dispute MLSP/IR/68/6/2025. 4.It is the Applicant’s position that under the CBA, all permanent unionisable employees are automatically enrolled in the Respondent's medical scheme, which is administered through appointed agents and insurers and provides cover for employees and their nominated spouses. 5.The Applicant further contends that in 2023, the Respondent introduced a policy requiring employees to produce a marriage certificate for their spouses to qualify for medical insurance coverage. The Applicant states that it objected to the requirement and proposed that alternative evidence of marriage, such as next-of-kin information and biodata records recognized by the Social Health Authority (SHA), be accepted. 6.It avers that although the Respondent initially agreed to suspend implementation of the requirement and consider the proposed alternatives, no meaningful action was taken, and in April 2025, the Respondent removed from the company medical scheme all spouses of employees who had not produced marriage certificates. 7.The Claimant states that it thereafter sought further engagement, including a meeting with the Respondent and the insurer, but the Respondent declined to meet or facilitate discussions and insisted on enforcing the marriage certificate requirement. 8.It is the Applicant’s contention that the Respondent unlawfully departed from the longstanding practice of accepting alternative proof of marriage without consulting the Union. It avers further that the abrupt introduction of the marriage certificate requirement was implemented without considering the adverse medical and welfare consequences for affected spouses. 9.The Claimant/Applicant further asserts that the Respondent breached the Collective Bargaining Agreement by failing to consult the Union, denying employee participation, and collaborating with the medical insurer to remove numerous spouses from the company medical scheme. 10.Consequently, the Claimant maintains that its members have been deprived of benefits guaranteed under the Collective Bargaining Agreement, while the affected spouses continue to suffer from lack of medical cover, imposing significant financial and emotional hardship on employees. 11.The Claimant relies on Article 43(1)(a) of the Constitution to argue that every person has a right to the highest attainable standard of health, including access to healthcare services. It further contends that the Marriage Act does not invalidate any form of marriage but merely provides for their registration, and that failure to register a marriage should not deprive spouses of medical benefits or subject them to hardship. 12.The Claimant also argues that Section 59(1) and (2) of the Marriage Act is permissive rather than mandatory, as it uses the word "may." Accordingly, the Claimant submits that, in the interests of justice, the Court should grant the orders sought in the application. 13.The Respondent opposed the application vide a Replying affidavit sworn by Diana Nthiwa on 14th April, 2026. 14.The Respondent states that the parties executed a Collective Bargaining Agreement (CBA) covering the period 1st January 2023 to 31st December 2024, which requires permanent unionisable employees to be enrolled in the Company's medical scheme, with reviews conducted in consultation with the Union. 15.It argues that the medical scheme predates the CBA and applies to all eligible employees, not just those covered by the CBA. The Respondent contends that medical cover for spouses and dependants is a voluntary benefit provided under Company policy, not a CBA entitlement or legal obligation. 16.The Respondent maintains that consultation with the Union is only required for changes affecting employees' medical benefits under the CBA, and not for changes relating to spousal or dependant cover. 17.It avers that in 2023, the Insurer, through its agent, required employees to submit marriage certificates as proof of marriage before their spouses could access medical cover, citing compliance with the Marriage Act, which recognizes a marriage certificate as conclusive proof of marriage. 18.The Respondent states that it negotiated a one year grace period (January–December 2024) to allow employees to obtain and submit the required marriage certificates. It avers that it communicated the requirement through a memo dated 22nd January 2024, explained it during Workers' Council meetings, and later issued a reminder memo dated 14th November 2024, extending the compliance deadline to 3st December 2024. 19.The Respondent states that it facilitated employees in obtaining marriage certificates, and over 100 employees complied, allowing their spouses to retain medical cover. It argues that the Claimant proposed alternative proof of marriage, but the Respondent declined, and instead extended the compliance deadline to April 2025. 20.The Respondent avers that, from April 2025, spouses without marriage certificates were temporarily suspended from medical cover until they complied. It maintains that the spousal cover is a discretionary benefit governed by Company policy and the insurance contract, and that it was under no obligation to accept alternative documents or involve the Insurer in consultations with the Claimant. 21.The Respondent avers that a trade dispute was reported to the Minister, which dispute was referred to conciliation, and the Conciliator recommended that the Respondent negotiate with the Insurer to accept sworn affidavits in place of marriage certificates for spousal medical cover. 22.The Respondent states that it rejected the recommendation, maintaining that marriage certificates are the only legally recognized conclusive proof of marriage under the Marriage Act and that the requirement is lawful and reasonable. 23.The Respondent avers that it rejected the recommendation, maintaining that a marriage certificate is the only conclusive proof of marriage under the Marriage Act and that alternative documents are not legally sufficient. 24.The Respondent argues that affidavits and other forms of proof have led to inconsistencies and administrative difficulties, making marriage certificates necessary to prevent abuse. It further contends that employees' spouses are not parties to the CBA, and the Respondent cannot be compelled to provide insurance benefits contrary to the Insurer's conditions or impose additional obligations on the employer. 25.The Respondent argues that it has no contractual or statutory obligation to provide medical cover to employees' spouses and therefore has not violated the right to health under Article 43 of the Constitution. It contends that any limitation on spousal access to medical cover is lawful and justifiable under Article 24 of the Constitution, as it requires proof of marriage in accordance with the Marriage Act. 26.The Respondent relies on Section 59 of the Marriage Act to argue that marital status must be proved through the documents recognized under that provision before a spouse can claim benefits dependent on marriage, including access to the employer's medical scheme. 27.The Respondent urges that the Claimant encourage its members to obtain marriage certificates so that their spouses can continue accessing benefits associated with marriage, including medical cover. 28.It maintains that the Claimant's application is without merit and should be dismissed with costs. 29.Parties canvassed the motion by way of written submissions, which have been duly considered. Analysis and Determination 30.The singular issue for determination is whether the Claimant/Applicant has satisfied the legal threshold for the grant of a temporary mandatory injunction directing the Respondent to reinstate all spouses of employees to the Company Medical Scheme pending the hearing and determination of the suit. 31.What the Applicant seeks is a mandatory order compelling the Respondent to include in its medical scheme spouses who have been excluded for failure to provide marriage certificates. Such an order, if granted, would in my view have the effect of reversing the Respondent's decision and effectively determining the substantive dispute before trial. 32.In Giella v Cassman Brown & Co. Ltd [1973] EA 358, it was held that to qualify for an interlocutory injunction, an applicant must establish a prima facie case with a probability of success, demonstrate that it stands to suffer irreparable injury incapable of compensation by damages if the order is not granted, and, where in doubt, the court determines the matter on a balance of convenience. 33.Courts have further affirmed that where the order sought is mandatory in nature like the one sought herein, the Court must apply the higher threshold set out in Locabail International Finance Ltd v Agro-Export & Another (1986), ALLR 901, where the Court held that a mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and only in clear cases where the Court is satisfied that the matter ought to be decided at once or where the Defendant has attempted to steal a march on the Plaintiff. This position was further adopted in Kenya Breweries Ltd & Another v Washington Okeyo [2002] KECA 284 (KLR). 34.The Applicant’s contention is that the Respondent unilaterally introduced the requirement for marriage certificates without consultation, contrary to the Collective Bargaining Agreement, thereby unlawfully depriving employees' spouses of medical benefits previously enjoyed. It further invokes Articles 41 and 43 of the Constitution to argue that Section 59 of the Marriage Act is permissive rather than mandatory. 35.On its part, the Respondent asserts that the medical scheme predates the CBA, that spousal cover is a discretionary benefit governed by Company policy and the insurance contract, and that the insurer introduced the marriage certificate requirement for purposes of legal compliance. It is further contended that the Respondent negotiated a one year grace period with the insurer, which period was extended; that it facilitated employees in obtaining marriage certificates; and that more than 100 employees were able to comply and indeed did so. 36.The Respondent further argues that consultation under the CBA concerns only employees' medical benefits, and not discretionary benefits extended to spouses. 37.Having keenly considered the rival positions, the Court finds that several fundamental issues remain seriously contested and cannot be conclusively determined on affidavit evidence alone. 38.For starters, whether the medical cover extended to spouses forms part of the negotiated terms of the CBA or is merely a discretionary benefit under Company policy is itself a substantive issue requiring interpretation of the Collective Bargaining Agreement, the parties' past practice, and evidence regarding the implementation of the scheme. 39.Secondly, whether the Respondent was obligated to consult the Claimant before introducing the marriage certificate requirement equally raises an arguable issue requiring evidence regarding the scope of Clause 35 of the CBA and the parties' established industrial relations practice. 40.Thirdly, the parties sharply disagree on the proper interpretation of Section 59 of the Marriage Act, specifically whether it prescribes the exclusive means of proving marriage or merely provides one of several acceptable modes. This issue equally calls for substantive legal argument at trial. 41.In light of the foregoing, the Court is unable, at this interlocutory stage, to conclude that the Applicant has established the exceptionally clear case required for the grant of a mandatory injunction. 42.The Court is equally mindful that the order sought would effectively grant the principal relief pleaded in the main claim. Courts have consistently held that interlocutory proceedings should not ordinarily determine the substantive rights of the parties before a full hearing unless the clearest of cases has been demonstrated. 43.The Court further notes that the Respondent did not abruptly withdraw the medical benefit, as the evidence before Court indicates that employees were notified of the new requirement in January 2024, granted approximately one year to comply, the deadline was extended, sensitization meetings were held, assistance was offered in obtaining marriage certificates, and a significant number of employees complied before implementation commenced. 44.It is my view that the prejudice suffered or likely to be suffered by the affected employees and their spouses, though undoubtedly significant, must be balanced against the equally serious consequence of compelling the Respondent to provide insurance cover contrary to the eligibility conditions imposed by its insurer before the legality of those conditions has been determined. 45.Accordingly, the Court is not persuaded that the Applicant has established the exceptional circumstances or an unusually strong prima facie case necessary for the grant of an interlocutory mandatory injunction, and the Notice of Motion dated 12th February 2026 is declined. 46.It is so ordered. SIGNED, DATED, AND DELIVERED BY VIDEO-LINK AND IN COURT AT NAIROBI THIS 9TH DAY OF JULY, 2026.C. N. BAARIJUDGEAppearance:Mr. Nyumba present for the Claimant/ApplicantMs. Wangong’u present for the RespondentMs. Esther S- C/A