https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2328

Kenya Union of Sugar Plantation & Allied Workers v West Kenya Sugar Co Ltd & another (Cause E008 of 2024) [2026] KEELRC 2328 (KLR) (30 July 2026) (Interim Judgment) Neutral citation: [2026] KEELRC 2328 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kakamega Cause E008 of 2024 DN Nderitu, J July 30, 2026 Between Kenya Union of Sugar Plantation & Allied Workers Claimant and West Kenya Sugar Co Ltd 1st Respondent Retail Management Solutions Limited 2nd Respondent Interim Judgment I. Introduction 1.The Claimant, a duly registered trade union, commenced this cause by way of a memorandum of claim dated 25th March 2024. The claim was amended on 5th February 2025 and the Claimant is seeking for various reliefs –1.A declaration that the actions of the respondent amount to unfair Labour practice, discriminatory and offends the principles of fair administrative action.2.That payment of stipends to outsourced employees, below the agreed terms of the memorandum amounts to discrimination, and underpayment hence the affected employs be entitled to salary arrears as from 1st December 2024 when company resumed operations.2a.A declaration that the failure to recall the 3 employees named in claim 14a, by the 1st and 2nd respondent amounts to wrongful and unfair dismissal2b.That the three employees named in claim No. 14a, be paid maximum compensation of 12-month salary at the CBA rates for unfair dismissal and loss of job.2b.That the said three employees be paid all their leave allowance and accrued annual leave days not taken.3.That, this honourable court be pleased to issue orders for the 1st respondent to pay salary arrears and related benefit for all the affected employees who were not recalled on duty as from 1st December 2023,4.That upon findings on the issue of discrimination the, honourable court be pleased to order for compensation for exemplary damages, injured feeling, psychological and mental tortures amounting to one million for each employee herein listed.5.That this honourable court be pleased to issue a permanent injunction against the respondent, respondent’s managers and/or agents barring them from victimizing/termination/coercion or otherwise disadvantaging any or all of the employees herein the list schedule A on account of this suit.6.That the costs of this suit be borne by the respondents.7.That the 1st respondent be ordered to pay back the transfer allowance of Ksh25,000 to the 4 employees who were transferred and deducted. 2.The initial memorandum of claim was accompanied with a verifying affidavit sworn by Francis Bushuru Wangara, the Secretary-General of the Claimant, on even date, a list and copies of the listed documents. The amended memorandum of claim was not accompanied with a verifying affidavit. 3.From the pleadings, it is plainly clear that the Union filed the cause for and on behalf of its purported members, the lgrievants, whose names were neither disclosed nor listed in the body of the memorandum of claim. 4.Upon service with the amended memorandum of claim, the 1st Respondent filed a memorandum of response through O & M Law LLP Advocates putting the Claimant to strict proof of all the allegations and assertions made against it. 5.The 1st Respondent also filed a witness statement by Duncan Abwawo, the Human Resource & Administration Manager, dated 28th March 2025. It also filed a list of documents of even date and photocopies of the listed documents. 6.On 21st March 2025, the grievants withdrew instructions from the Union and appointed Oscar Wachilonga & Associates Advocates to act for them and a notice of appointment was filed to that effect. Witness statement by the following persons were then filed – Luka Muhindi Ismael, Jafred Werakoko, David Simiyu Wambasa, Daniel Amuli Bulali, and Andrew Muliru Ligare – the purported grievants. 7.In response to the above witness statements, the 1st Respondent filed a supplementary witness statement by Collins Aluku, dated 10th October 2025. 8.When the matter came up in court for hearing on 4th November 2025, by consent, the court directed that the matter be heard and canvassed by way of written submissions. Mr. Munyendo for the grievants filed written submissions dated 7th January 2026 and Mr. Oguda for the 1st Respondent filed written submissions dated 9th February 2026. 9.The 2nd Respondent did not take part in these proceedings and filed no papers at all. II. The Claimants’ Case 10.Before the court engages in considering the merits and demerits of the Claimant’s case, there is a preliminary issue that the court ought to determine suo motto. As noted above, this cause was originally filed by the named Claimant in its capacity as a registered trade union for and on behalf of its alleged members, who were neither named in the body of the initial memorandum of claim nor in the amended memorandum of claim. 11.Subsequently, vide a notice to cease acting dated 4th March 2025, the Union ceased acting for its purported members/grievants, who subsequently appointed the Advocates now on record to act for them. 12.Now, the law recognizes many legal persons or entities that may sue or be sued. Among those entities are registered limited liability companies, partnerships, corporate public and private institutions, and of course natural persons. There are also provisions in the law that allow a person or groups of persons to be represented by one or more persons, in what is called a representative suit or action – For example, see Articles 22 & 258 of the Constitution. Minors who lack legal capacity by virtual of minority age may act through a guardian or a legal representative in court proceedings. 13.Section 22 of the Employment and Labour Relations Court Act provides as follows –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. 14.It is clear from the above law that an employee who has a dispute with his/her employer and wishes to have the same heard and determined in this court (ELRC) has several options in approaching the court. He/she may file the claim in person; through his/her trade union in which case a union official or officer shall represent him/her; or through an advocate duly qualified to prosecute matters in court. 15.This court has said time without number that where a union has filed a claim on behalf of its members, it is a legal imperative that the names of such members, otherwise referred to a grievants, should be disclosed and proof of their membership with the union availed. It is un-procedural, irregular, and unlawful for a union to assume representation of employees merely on the basis that such employees work in a sector from which the union draws its membership. This is such a preliminary issue that is usually assumed and or overlooked in many causes, especially where no objection is raised in that regard. 16.While the issue of membership was not raised by the Respondents, the union withdrew from acting for the grievants and filed a notice to cease acting as noted above. It follows, therefore, that upon the Union ceasing to act for its purported members, the grievants were on their own, so to say, and ought to have amended the claim substituting their names in place of the Union. This is so because the instructed counsel or law-firm had no legal capacity to occupy the space hitherto occupied by the Union. Advocates are legal agents allowed by the law to offer professional legal advice and service, but they are not parties in those suits, causes, or actions and cannot occupy that space. 17.What the court is saying in so many words is that, once the Union, named as the Claimant herein, withdrew from acting for the grievants, the said persons ought to have amended the claim to reflect that status because as it turns out, the Union named as the Claimant herein had no other interest in the matter other than representing the grievants. Once the Union ceased acting or representing the grievants, it lacked loci standi to remain as a party in the cause. The Union had no business remaining on record as it had no dispute of its own with the named Respondents. 18.Moreover, the Union did not instruct the law-firm representing the grievants to act for it in the matter. Rather, the law-firm came on record representing the grievants on their own accord, and not the Union. 19.In the circumstances, the court finds and holds that the cause as represented and prosecuted is incompetent, improperly before the court, and in abuse of the court process. Once the grievants removed themselves from representation by the Union, and they had the right to do so, they ought to have amended the claim to reflect that new factual status. By retaining the name of the Union as the Claimant, they rendered the claim misleading, untenable, and incompetent. 20.While the Court appreciates that this cause has been pending since 2024, it is the finding and holding of the court that it is too late in the day for the Court to allow amendments to the claim as there is no competent cause before the court capable of being heard and determined. In any event, no application for amendment of the claim has been made and parties are bound by the pleadings placed on record. 21.For the foregoing reasons, the claim herein is found and held to be incompetent and untenable and the same is hereby struck out. For avoidance of doubts and subject to limitation, the grievants have the right to file a new competent claim in court for hearing and determination on merits. 22.Following the above finding and holding, considering the merits or demerits of the claim shall amount to a futile academic exercise for which the court has no time. VII. Orders 23.Flowing from all the foregoing, the court issues the following orders –a.This cause is hereby struck out in its entirety for being incompetent and untenable for the reasons stated above.b.No order on costs. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 30TH DAY OF JULY 2026.……………………DAVID NDERITUJUDGE