https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1968

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT & LABOUR RELATIONS COURT** **AT NAIROBI** **ELRC CAUSE NO. E114 OF 2025** ***(Before Hon. Lady Justice Hellen Wasilwa, J)*** **KENYA UNION OF COMMERCIAL FOOD** **AND ALLIED WORKERS……………...………………………CLAIMANT** **VS** **WORLDWIDE MOVERS (KENYA) LIMITED..................................................................RESPONDENT** **RULING** 1. In opposition to the instant suit, the Respondent filed a Notice of Preliminary Objection dated 19th January 2026 on the following grounds: 2. *This Honourable Court lacks the jurisdiction to hear and determine this suit as the cause of action in this-suit arose outside the territorial jurisdiction of this Honourable Court.* 3. *The Respondent does not recognize the Claimant's trade union under which the Claimant purports to act, and there is no Collective Bargaining Agreement (CBA) between the Claimant and the Respondent. The Claimant has not provided any proof of union recognition or a valid CBA binding the Respondent.* 4. *There is no contractual relationship between the Respondent and the Claimant’s union. Therefore, the Claimant lacks the locus standi to file the claim herein against the Respondent.* 5. *This Honourable Court lacks the jurisdiction to hear and determine this suit as the value of the subject matter of this suit is below the pecuniary jurisdiction of this Honourable Court.* 6. *The Memorandum of Claim as drawn and filed and the entire suit is fatally and incurably defective for want of form and substance and should therefore be struck out in limine with costs.* **Respondent’s Submissions** 1. It is the Respondent's submission that the Preliminary Objection meets the established threshold and ought to be upheld. 2. The Respondent submitted that a preliminary objection is competent only where it raises a pure point of law capable of disposing of the entire suit without ascertainment of facts, adduction of evidence, or exercise of judicial discretion; and placed reliance on the locus classicus, ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA.*** 3. The Respondent further relied on ***Quick Enterprises Ltd v Kenya Railways Corporation, Kisumu HCCC No. 22 of 1999***, where the Court held that preliminary points must be capable of disposing the matter without resort to facts beyond the pleadings. It was submitted that each ground raised derives purely from the face of the pleadings, the Constitution of Kenya 2010, the Labour Relations Act, 2007, and the Employment and Labour Relations Court Act, 2011, and no contested facts require resolution. 4. On locus standi and recognition, the Respondent submitted that the Claimant Union lacks the *locus standi* to institute and maintain this suit. It maintains that it does not recognize the Claimant Union and that no Collective Bargaining Agreement exists between the parties, a fact admitted in the Claimant's own pleadings. 5. The Respondent argued that recognition is a mandatory statutory prerequisite under Section 54(1) of the Labour Relations Act, 2007, which requires recruitment of a simple majority of employees and a formal recognition process before a union may institute a trade dispute or represent any member against a specific employer. In the instant suit, no proof of recognition or registered CBA has been attached to the pleadings. 6. Reliance was placed on [***Communication Workers’ Union v Safaricom Limited [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1302/eng%402014-09-25), where the Court held that in the absence of recognition, a trade union is a mere bystander in disputes between workers and their employers. It was submitted that there exists no privity of contract or legal relationship between the Respondent and the Kenya Union of Commercial, Food and Allied Workers. It argued that *locus standi* being a pure point of law, the absence of recognition or a valid CBA is fatal to the suit. 7. On territorial and pecuniary jurisdiction, the Respondent submitted that this Court lacks territorial jurisdiction as the cause of action arose outside Nairobi. The Respondent's operations, Mr. Manase's employment, and all alleged events occurred outside the court's territorial jurisdiction. 8. It was further submitted that the quantum claimed is modest and falls within the jurisdiction of subordinate courts under prevailing Gazette Notices, thereby ousting the pecuniary jurisdiction of this Honourable Court. The Respondent relied on [***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keca/1989/48/eng%401989-11-17), where the Court of Appeal held that once a court finds it lacks jurisdiction, it must down its tools immediately. 9. On the defectiveness of the Claim, the Respondent submitted that the Memorandum of Claim dated 4th February 2025 is incurably defective in that it wrongly characterizes a lawful retirement as unfair termination. 10. It was submitted that Mr. Manase Ebony Onziru retired lawfully upon attaining the age of 60 years in accordance with the Respondent's retirement policy, having been issued a retirement notice, conducted a handover, received his terminal dues, and been issued a Certificate of Service. The Respondent argued that the Claimant has failed to plead any unfair procedure, any violation of the Employment Act, 2007, or any facts establishing that retirement was used as a disguise for termination. Reliance was placed on [***Oraro v Mbaja [2005] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2005/3182/eng%402005-02-04) for the proposition that a pleading that mischaracterizes the cause of action and fails to plead essential ingredients ought to be struck out in limine. 11. The Respondent submitted that the cumulative effect of all the foregoing grounds renders the suit incompetent, frivolous, and an abuse of court process, and that the same ought to be struck out without proceeding to the merits. **Claimant’s Submissions** 1. On jurisdiction, the Claimant submittedthat the challenge to territorial jurisdiction is a non-issue and cannot hold; as the grievant's witness statement dated 4th February 2025 establishes his area of residence as Mathare, Nairobi County, and the Respondent's head office is situated in Limuru, Kiambu County. 2. It was submitted that per Practice Directions 3/2018, suits for Kiambu County fall squarely within the jurisdiction of the Nairobi Employment and Labour Relations Court. The Claimant further relied on Article 162(2)(a) of the Constitution which mandates Parliament to establish courts with the status of the High Court to hear and determine disputes relating to employment and labour relations, and Section 12(1)(a) of the Employment and Labour Relations Court Act, which confers upon this Court exclusive original jurisdiction over all disputes relating to or arising out of employment between an employer and an employee. 3. The Claimant submitted that employment-related matters have no territorial boundaries and may be heard within any geographical area where filed. 4. On recognition, CBA, and locus standi, the Claimant submitted that whilst recognition and a Collective Bargaining Agreement are instruments by which a trade union and an employer regulate terms and conditions of service upon attainment of the 50%+1 threshold, their absence does not preclude a trade union from representing an employee in time of need. 5. It submitted that the right of representation is constitutionally anchored under Article 41(2)(c) of the Constitution which guarantees every worker the right to form, join, or participate in the activities and programmes of a trade union. Additionally, Article 36(1) enshrines the right to freedom of association including the right to form, join, or participate in the activities of an association of any kind. The Claimant thus argued that the grievant's right to have the union represent him cannot be defeated by the absence of a recognition agreement or CBA. 6. In support thereof, the Claimant cited in [***Kenya Shoe and Leather Workers Union v Modern Soap Factory [2018] eKLT [2018] KEELRC 1264 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1264/eng%402018-07-31), where the Court held that: *"…..* *a trade union has many roles and although collective bargaining which is premised on recognition is a premiere one, the other roles such as association generally and representation in particular, are equally important. What is clear is that Section 54(1) of the Labour Relations Act creates no necessary nexus between recognition and representation.”* 7. On *locus standi*, the Claimant submitted that Exhibit 2 of its bundle establishes the grievant's membership of the union, which is his constitutional right. Further, Section 22 of the Employment and Labour Relations Court Act expressly provides that a party to proceedings may be represented by an office bearer or official of his trade union. It was submitted that once an employee joins a trade union, that union has every right to defend that employee in pursuit of justice. 8. On pecuniary jurisdiction, the Claimant submitted that this suit is properly before this Court notwithstanding the grievant's salary level; on grounds that prior to filing, the dispute underwent the statutory dispute resolution mechanism under Sections 62(1)(a) and (b) and 73(1) of the Labour Relations Act, 2007, which provides for reporting of trade disputes and referral to the Industrial Court where conciliation fails to resolve the dispute. 9. The Claimant submitted that whilst Gazette Notice No. 6024 of 22nd June 2018 limits the jurisdiction of subordinate courts to disputes from contracts of employment where the employee's gross monthly pay does not exceed Kshs. 80,000, this suit is a trade dispute that underwent the full conciliation process without settlement, thereby properly landing before this Court regardless of the quantum involved. 10. Reliance was placed on [***Kenya Building Construction Timber and Furniture Industries Employees Union v Nakala Building General Contractors [2014] eKLR***](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/834/eng%402014-03-06), where the Court held:*”* *From the documents on record, it is clear that this claim went through the conciliation process culminating with recommendations issued by the Conciliator which the Respondent failed to honour. I therefore find the pleadings which were signed by the Secretary General of the Claimant Union to be properly before this Court. The question of the Grievant's membership with the Claimant Union is one of fact which cannot be determined in limine.”* 11. I have examined all the averments and submissions of the parties herein. The applicant has raised territorial jurisdictional issues on this cause as well as issue of recognition. 12. On issue of territorial jurisdiction this court being of the status of the high court, it has jurisdiction throughout the country. 13. As concerns the issue of recognition of a trade union, there is no ban to a union defending its member against an employer. This principal is enshrined in article 41 of the constitution which guarantees a right to join a union of choice. 14. This being the position, I find the preliminary objection raised lacks merit. The same is dismissed and parties are urged to proceed with the hearing of the main cause. Costs in the cause. **Dated, Signed and Delivered virtually at Nairobi this 8th Day of July 2026.** **HELLEN WASILWA** **JUDGE**