https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1297

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT KAKAMEGA** **CAUSE NO. E037 OF 2025** **(AS CONSOLIDATED WITH CAUSE NO. E040 OF 2025 FOR THIS RULING)** **BETWEEN** **KENYA UNION OF DOMESTIC, HOTELS,** **EDUCATIONAL INSTITUTIONS AND** **HOSPITAL WORKERS…….……………………………. CLAIMANT** * **VERSUS -** **BOM – ST. MARYS MISSSION** **HOSPITAL MUMIAS………………….……………. RESPONDENT** **(BEFORE HON. JUSTICE DAVID NDERITU)** **Ruling** 1. **INTRODUCTION** 2. The Claimant, a trade union, filed a notice of motion dated 14th October 2025 (the application) seeking for the following orders – 3. ***Spent.*** 4. ***That the Honourable court is pleased to issue temporary orders, the affected employees are and still remain employees of the respondent despite the internal memo suspending their services dated Monday, June 30th 2025. Their dues should be paid, and that they be recalled back to duty.*** 5. ***That the Honourable court be pleased to issue temporary orders restraining the respondent from suspending, terminating, or otherwise preferring disciplinary action of any kind on members of the claimant pending inter-partes hearing and determination of this application.*** 6. ***That the Honourable court orders the respondent to sign the recognition agreement, deduct and remit union dues to the claimant.*** 7. ***That the honourable court compels the respondent to sign the forwarded recognition agreement.*** 8. ***That the costs of this application be awarded to the claimant.*** 9. ***Any other relief the court deems fit.*** 10. The application is expressed to be based on ***Section 13 of the Employment and Labour Relations Act.*** It is premised on the grounds on the face of it. 11. The application is supported with an affidavit of Thomas Mboya, the Claimant’s Branch Secretary - Kakamega, and National Treasurer, sworn on 14th October 2025, with several annexed thereto. 12. In the statement of claim the claimant is seeking urgent court intervention to stop alleged unfair labour practices by the Respondent, including possible termination, non-payment of dues, and replacement of workers, which it claims violate constitutional and labour law protections. 13. In opposition to the application and claim, the Respondent filed a memorandum of response; a replying affidavit sworn by Sr. Janet Nduku, the Respondent’s former Hospital Administrator, on 24th November 2025, and a Preliminary Objection (PO) dated 24th November 2025. 14. The PO is premised on the following grounds – 15. ***That the Statement of Claim, application and the entire suit herein are bad at law for being fundamentally defective and improperly instituted against the Respondent, a non – representative and un - incorporated entity without legal personality of its own contrary to Article 22 of the Constitution, 2010, The Land (Perpetual Succession) Act, Cap 288, Section 15 of the Medical Practitioners and Dentists Act, Cap. 253, Rule 2 of the Registration and Licensing of Medical Institutions Rules and Section 2 of the Interpretation and General Provisions Act, Cap. 2 Laws of Kenya, the law of persons generally as well as judicial precedent and ought to be struck out and or dismissed with costs.*** 16. ***That the Statement of Claim, application and the entire suit herein are bad at law for being fundamentally defective and improperly instituted against the Respondent, a non–representative and unincorporate entity for and who has no locus standi to stand and or sustain trial as presented and ought to be struck out and or dismissed with costs.*** 17. ***That the Statement of Claim, application and the entire suit herein are bad at law for being fundamentally defective and improperly instituted by the Plaintiff/ Applicant herein, who lacks the requisite locus standi to bring this action in the absence of any legal, beneficial and or representative interest vide recognition agreement with the intended and or the Respondent as presented herein and ought to be struck out and or dismissed with costs.*** 18. ***That the Honourable Court consequently lacks the requisite jurisdiction to entertain, hear and or determine the suit herein, and the same ought be struck out and or dismissed altogether.*** 19. ***That the Statement of Claim, application and entire claim herein are thus and consequently non - starters, an abuse of the due and court process as well as of law, defective in substance, form and improperly presented and ought therefore to be struck out and or dismissed altogether with costs.*** 20. In response to the PO, the Claimant filed a Response dated 23rd January 2026 stating that it has locus and that the named Respondent is the employer. 21. When the matter came up for directions on 11th November 2025, the Claimant informed the court of redundancy notices issued by the Respondent to its members and its filing of ***ELRC Cause No. E040 of 2025*** wherein an application dated 24th November 2025 had been filed by the Claimant seeking for orders that ***–*** 22. ***Spent*** 23. ***THAT: The Honourable court is pleased to issue temporary orders stopping the intended redundancy pending hearing and determination of this application and ELRCC/E037/2025.*** 24. ***THAT: The Honourable court be pleased to issue temporary orders restraining the respondent from evicting members of the claimant from their staff quarters pending determination of this application.*** 25. ***THAT: The respondent is restrained from suspending, terminating, or otherwise preferring disciplinary action of any kind on members of the claimant pending inter-partes hearing and determination of this application.*** 26. ***THAT: The costs of this application be awarded to the claimant*** 27. ***Any other relief the court deems fit.*** 28. The court issued interim orders on 28th October 2025, injuncting the Respondent from terminating the Claimant’s members contrary to the law and stopping their eviction from the staff quarters. These orders were confirmed on 4th November 2025 pending the hearing and determination of that cause. 29. In ***ELRC Cause No. E040 of 2025*** the Respondent filed a response and a replying affidavit dated 24th November 2025 and a PO dated 4th November 2025 identical to that filed in this cause. 30. For the expeditious disposal of the two pending causes this ruling shall thus apply to ***ELRC Cause No. E040 of 2025*** as well***.*** This consolidation is done under ***Rule 61 of the Employment and Labour Relations Court (Procedure) Rules, 2024***. 31. By consent, the court directed that the POs and the applications be canvassed by way of written submissions. Mr Shifwoka for the Respondent filed written submissions dated 24th November 2025 in both causes. The Claimant did not file written submissions in the two matters. 32. **EVIDENCE** 33. The Claimant’s case is that from 2021 it made several attempts to access the Respondent’s premises to conduct union education meetings and recruit employees into the union, but the Respondent consistently denied its officers access. The Claimant states that despite requests made through letters dated 17th June 2021, 21st July 2021, 26th June 2023, and 14th October 2024, the Respondent declined to permit meetings on its premises and failed to respond altogether. According to the Claimant, this conduct amounted to interference with employees’ constitutional right to freedom of association and participation in union activities. 34. The Claimant further avers that notwithstanding the Respondent’s refusal to facilitate access to employees, it successfully recruited employees who voluntarily joined the union and executed check-off forms authorising deduction and remittance of union dues. It contends that the number of recruited employees constituted a simple majority of the Respondent’s unionisable workforce entitling the Claimant to recognition under ***Section 54 of the Labour Relations Act.*** The Claimant states that it forwarded a recognition agreement to the Respondent on 21st July 2025 and proposed dates for execution thereof, but the Respondent failed and/or refused to respond. 35. It is the Claimant’s case that upon realising that employees had joined the union, the respondent embarked on a series of unfair labour practices aimed at intimidating and victimising union members. The Claimant alleges that numerous grievances arose at the workplace, leading to industrial unrest and thereafter conciliation efforts involving the labour office. The Claimant avers that on 27th May 2025, the Respondent with the employee representatives and executed a memorandum of understanding without involving the Claimant union. The claimant further states that the Respondent subsequently failed to honour the memorandum, prompting employees to issue a seven-day strike notice dated 20th June 2025. Following a peaceful protest, the Respondent allegedly issued an internal memo suspending all its employees. 36. The Claimant further contends that despite service of duly signed check-off forms, the Respondent failed to deduct and remit union dues. Consequently, the dispute was escalated to the Cabinet Secretary responsible for Labour on 17th September 2025, leading to the appointment of a conciliator who later issued a certificate of unresolved dispute after the conciliation efforts failed. 37. The Claimant further challenges the Respondent’s decision to declare redundancy. It states that shortly after the institution of this cause on 14th October 2025, the Respondent issued a general redundancy notice and individual notices to members of the claimant, indicating that the redundancies would take effect on 15th November 2025. The claimant avers that the Respondent simultaneously issued certain employees with certificates of service and commenced eviction of employees from the staff quarters. 38. According to the claimant, the redundancy process was unlawful and contrary to ***Section 40 of the Employment Act,*** in that the claimant was not notified of the intended redundancies despite its members being affected. The Claimant maintains that the Respondent’s actions were calculated to victimise employees on account of their union membership and participation in union activities, contrary to ***Article 41 of the Constitution***, the labour laws of Kenya, and applicable ***ILO conventions***. The Claimant therefore seeks for orders restraining the Respondent from proceeding with the alleged unlawful redundancies, evictions and other unfair labour practices. The Claimant further asks for orders compelling recognition of the union and deduction and remittance of union dues. 39. In the replying affidavit, the Respondent’s former Hospital Administrator deponed that ‘St. Mary’s Mission Hospital, Mumias, is merely a registered medical institution operating under the Registered Trustees of the Catholic Diocese of Kakamega and lacks the legal personality capable of suing or being sued. 40. It is contended that both the claims and applications are fundamentally defective for having been instituted against a non-existent and unincorporated entity. Further, Respondent challenged the Claimant’s locus standi, asserting that the Claimant did not attain the legal threshold for recognition, failed to furnish proof of the alleged membership of the employees, and never received authorisation for deduction or remittance of union dues. 41. The deponent in the replying affidavits further stated that the redundancy complained of had already taken effect on 14th October 2025 and the orders sought had therefore been overtaken by events. She averred that the already terminated employees had engaged in an unlawful and unprotected strike from 28th June 2025 whereby they abandoned work, destroyed the employee clocking system, and discharged patients without settlement of bills, thereby occasioning financial loss to the Hospital. 42. It is further deponed that due to financial and operational difficulties, the hospital suspended operations and subsequently declared redundancy in compliance with ***Section 40 of the Employment Act***. According to the deponent, all salary arrears were settled save for the redundancy package, which was to be paid in instalments. She maintained that the application disclosed no *prima facie* case, no irreparable harm, and no basis for injunctive relief, and urged the Court to strike out and dismiss both causes and the applications with costs. 43. The Claimant opposed the Respondent’s PO and maintained that the two causes were properly instituted. It was stated that the Claimant is a duly registered trade union with the mandate to represent its members, whose membership was evidenced through the check-off forms annexed ***Cause No. E040 of 2025***. The Claimant further contended that it has the requisite *locus standi* under ***Article 41 of the Constitution*** to institute and prosecute the claim on behalf of its members. 44. The Claimant further argued that the Respondent falls within the definition of an employer and is therefore properly before the Court in matters relating to employment and labour relations. According to the Claimant, although a recognition agreement had been forwarded to the Respondent for execution, the Respondent had failed and/or refused to sign the same. It is nevertheless the Claimant’s position that the absence of a signed recognition agreement did not extinguish its right to represent and protect its members from unfair labour practices. 45. Further, the Claimant posited that this Court has jurisdiction to hear and determine the dispute pursuant to the ***Constitutio*n***,* the ***Employment and Labour Relations Court Act,*** the ***Labour Relations Act*** and, the ***Labour Institutions Act.*** The POs are termed frivolous and intended to delay the expeditious determination of the two causes while shielding the Respondent from accountability. 46. The Claimant further stated that despite declaring redundancy, the Respondent had continued with plans to resume operations and had secretly interviewed and recruited new employees to replace the affected workers. The Court is thus urged to find and hold that the POs lack merit and to dismiss the same with costs. 47. **SUBMISSIONS** 48. Counsel for the Respondent submitted globally that the two causes and the attendant applications are incompetent, fatally defective, and an abuse of the court process. It is submitted that the suit had been instituted against a non-juristic entity that lacked the legal capacity to sue or be sued, the proper entity being the Registered Trustees of the Catholic Diocese of Kakamega. 49. It is further contended that the Claimant lacked *locus standi* as it had failed to identify or disclose the specific members or employees on whose behalf the claim had been brought and it had equally failed to demonstrate any recognition agreement or legal nexus between the parties. 50. In support of the PO, counsel for the Respondent cited **Football Kenya Federation v Kenyan Premier League Ltd & 4 Others [2015] eKLR** wherein it was held that unincorporated entities lacking legal personality cannot sue or be sued in their own names and that proper parties must be identified for a suit to be competent. Counsel also relied on **Simu Vendors Association v Town Clerk, City Council of Nairobi & Another [2005] eKLR**, wherein the Court held that proceedings instituted against parties without legal capacity are null and incapable of being revived through amendment, joinder, or substitution. Further, counsel cited **Evans Otiendeh Omolo v School Committee Union Primary School & Another [2015] eKLR** wherein it was held that proceedings against non-existent entities amount to an abuse of the court process. The Respondent further submitted that the above identified defects are substantive and not curable under ***Article 159(2)(d) of the Constitution.*** 51. On the applications for interim injunctive orders, counsel submitted that the same are unmerited as no substantive prayers of a similar nature had been sought in the main claim. Counsel cited **Morris & Company Limited v Kenya Commercial Bank Limited [2003] 2 EA 605** in support of this argument. The Respondent further invoked the principles in **Giella v Cassman Brown & Co. Ltd [1973] EA 358** and **Daniel Mbithi Mathiu v Consolidated Bank of Kenya Ltd & Another [2012] eKLR,** arguing that the Claimant had failed to establish a *prima facie* case, irreparable harm, or that the balance of convenience tilted in its favour. It is further contended that the matters sought to be injuncted had already occurred. It is submitted that the now former employees had abandoned work following redundancy declared on 14th October 2025. Consequently, the Court is urged to uphold the POs and dismiss the two causes and the applications with costs. 52. **ANALYSIS & DETERMINATION** 53. The court has carefully read and considered, the two memoranda of claim, the two applications, the affidavits in support, the replying affidavits, the POs, and the written submissions on behalf of the Respondent, alongside all the cited authorities. The following are the issues for determination – ***Whether the named respondent as sued has the legal capacity; Whether the Claimant has the locus standi; and, Whether the Claimant has met the threshold for issuance of the orders sought.*** 54. **THE NAMED RESPONDENT** 55. It is argued that the Respondent as sued is an unincorporated entity incapable of sustaining a suit in its own name as the same is only a registered name under the ***Medical Practitioners and Dentists Act*** and ***Rule 2 of the Registration and Licensing of Medical Institutions Rules.*** it is submitted that the named Respondent is without any legal personality. 56. The court has perused the pleadings and the documents adduced and notes that the Certificates of Service adduced by the Claimant indicate the named Respondent as the employer. 57. No evidence has been availed by the Claimant in respect of the legal capacity of the Respondent to be sued. In my considered view, it is upon a litigant to establish the capacity of the adverse party before filing a cause in court. It is a misnorma for a court to hold otherwise as a cause filed against a party without legal capacity is dead on arrival, null, and void. The Court agrees with the authorities cited by the counsel for the Respondent that the two causes are dead on arrival, null, and void for lack of legal capacity on the part of the named Respondent. 58. **LOCUS STANDI** 59. The Claimant is a trade union. It brought the two applications and claims on behalf of its alleged members. The Respondent denied the allegation that the Claimant has the claimed membership and hence the Claimant had a legal burden to prove that the alleged grievants were its members. Failing to do so disentitles the Claimant the *locus standi* to bring the suit. The Claimant relied on check-off forms signed by various persons between July 2025 and October 2025. The notice authorising deductions was described as Legal Notice 195 dated 1st November 2018 but the same was not produced. The Claimant indicated that its members signed the check-off forms authorising the deduction of the union dues but the Respondent did not effect the deductions. 60. The right of representation of a party by the union is provided for under ***Section 22 of the Employment and Labour Relations Act*** in the following terms – ***Representation before the Court. In any proceedings before the Court or a subordinate Employment and Labour Relations Court, a party to the proceedings may act in person or be represented by an advocate, an office bearer or official of the party's trade union or employers' organisation and, if the party is a juristic person, by a director or an employee, specially authorised for that purpose.*** 61. In ***Kenya Hotels and Allied Workers Union v Diani Sea Resort T/A Carslake Nominee Limited (2015) eKLR Rika J*** interpreted the representation by the union as follows – ***Legal representation of individual Employees in Court and other Dispute Resolution Platforms is an obligation of the Trade Union, imposed by the Trade Union Constitution. It is a right of the Employee, which flows from his individual Membership of a Trade Union, normally guaranteed through the Trade Union Constitution. It is an aspect of the right to associate under the Constitution of Kenya. Section 22 of the Industrial Court Act 2011 grants Trade Union Representatives the right to represent their Members in Court. The germane issue for the court to determine is whether the said 22 grievants were members of the claimant. The burden of proof lay with the claimant for asserting they were its members paying dues. The payment of dues is proof of membership. The evidence relied on was a notice of deduction dated 31st August 2012, and all the witnesses in court admitted they had neither paid dues or instructed the claimant to deduct the dues. In essence, they also disowned the alleged checklist with their names and signatures.*** *(Emphasis added)* 62. The right of representation of employees by a trade union in court flows from the membership. Under the Certificate of Unresolved Trade Dispute dated 7th October 2025, the conciliator’s finding was that the union had enrolled 82 members, which exceeded the simple majority threshold. The conciliator, however, noted that the Respondent had failed to deduct and remit union dues. 63. The Respondent having failed to deduct and remit union dues, nothing prevented the members of the claimant from paying any dues, levies, subscriptions or other payments authorised by the constitution of the trade union directly to the Claimant by dint of ***Section 52 of the Labour Relations Act.*** It is the finding and holding of the court that there is no proof by the Claimant of any payment of union dues to the Claimant to cement membership of the alleged grievants. The lack of membership disentitles the Claimant the *locus standi* to bring the claims on behalf of the alleged grievants. ***Section 48(1) of the Labour Relations Act*** provides that payment of union dues is a pre-condition for union membership – ***In this Part, “trade union dues” means a regular subscription required to be paid to a trade union by a member of the trade union as a condition of membership’*** *(Emphasis added)*. 1. For all the foregoing reasons, the two causes and applications are incompetent and without merit. The Respondent has no legal capacity to be sued in the name herein and the Claimant has failed in demonstrating that the alleged grievants are its members. 2. However, the Claimant and or the grievants are entitled to pursue the proper Respondent for appropriate remedies if they so wish. 3. **ORDER** 4. The court orders that – 5. ***The application and claim both dated 14th October 2025 in ELRC Cause No. 37 of 2025 are hereby struck out.*** 6. ***The application and claim in the ELRC Cause No. E040 of 2025, both dated 24th October 2025, are hereby struck out.*** 7. ***The Interim orders issued on 4th November 2025 are hereby set aside and discharged.*** 8. ***There is no order as to costs.*** **DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 14TH DAY OF MAY 2026.** **....................................** **DAVID NDERITU** **JUDGE**