https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1880

Kenya Union of Sugar Plantation & Allied Workers v West Kenya Sugar Company Ltd (Cause E004 of 2026) [2026] KEELRC 1880 (KLR) (25 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1880 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kakamega Cause E004 of 2026 DN Nderitu, J June 25, 2026 Between Kenya Union of Sugar Plantation & Allied Workers Claimant and West Kenya Sugar Company Ltd Respondent Ruling I. Introduction 1.In a memorandum of claim dated 15th January 2026 filed for and on behalf of Mr. David Wambasa (the Grievant), a member of the union, the Claimant is seeking for the following reliefs –1.That the intended transfer of Mr. David Wambasa be revoked.2.A declaration that transfers of such a senior union officer at the branch level be done in consultation with the claimant union.3.A declaration that no employee should be transferred without a notice of less than 30 days.4.An order directed to the respondent for full payment of transfer allowance before relocation of a transferred employee. 2.Contemporaneously, the Claimant filed a Notice of Motion (the application) of even date seeking for the following orders –1.Spent.2.That service be dispensed forthwith.3.That pending hearing and determination of this application the honorable court be pleased to issue an injunction restricting/barring the respondent from affecting/implementing the intended transfer of Mr. David Wambasa from Naitiri Unit to Kabras Unit.4.That this honorable court be pleased to issue temporary orders for Mr. David Wambasa to continue attending his normal duties at Naitiri Unit pending hearing and determination of this application.5.That pending hearing and determination of the suit the respondent and its managers be restrained from instituting any disciplinary action against Mr. Wambasa on account of failing to obey the transfer.6.That this court be pleased to issue orders restraining/barring the respondent or/and his managers from instituting any disciplinary action against the grievant employee on account of this litigation/suit.7.That an order be issued for the respondent to bear costs of this application. 3.The application is expressed to be brought under Rule 45 & 47 of the Employment and Labour Relations (Procedure) Rules 2024, Section 10 of the Employment Act, Section 5(1) & (2) of the Labour Relations Act, Articles 27, 41, 47, & 159 of the Constitution and All other enabling provisions of the law and ILO Conventions. 4.The application is supported with the affidavit of Mr. Francis Bushuru Wangara, the General Secretary of the Claimant, sworn on even date with several annexures thereto. 5.In response to the application, the Respondent through O & M LLP Advocates filed a replying affidavit sworn by Mr. Billington Wesonga Matara, the human resource and administration assistant manager, on 21st January 2026. 6.With the leave of the court, the Claimant filed a further affidavit sworn by the Grievant on 9th February 2026 with several annexures thereto. 7.By consent, the court directed that the application be canvassed by way of written submissions. Mr. Akhonya, a representative of the Claimant, filed written submissions dated 22nd March 2026, while Mr. Ogunda, Counsel for the Respondent, filed written submissions dated 27th February 2026. II. Evidence 8.In the supporting affidavit, the deponent stated that he is the General Secretary of the Claimant. He further stated that the union has a valid recognition agreement with the Respondent and that the parties have in the past negotiated and signed several collective bargaining agreements (CBAs). 9.It is deposed that the grievant was transferred from the Respondent’s Kabras unit to the Naitiri unit in August 2024. It is stated that the grievant is a union official who upon the transfer to Naitiri recruited more than 120 employees into union membership and helped in setting up a new union branch there. The deponent stated that the transfer of the grievant back to Kabras unit is intended to curtail his lawful trade union activities and more so his ascendancy to the leadership of the union branch as secretary thereof in the elections slated for 17th January 2026. 10.In the replying affidavit, it is deposed for the Respondent that from July to November 2023 the Respondent suspended its operations following a directive from the Ministry of Agriculture due to lack of sugarcane. In March 2024, the Claimant filed Kakamega ELRC No. E008 of 2024 against the Respondent seeking reinstatement of the Grievant (this matter is pending judgment before this court slated for 16th July 2026 and hence the court shall make no comments on the merits and or demerits of the same). 11.However, it is deposed that in a ruling delivered on 1st August 2024 in the above cause, the court (Keli J) stated that it has no business stepping into the workplace to manage the human resource which a prerogative of an employer. It is deposed that the instant application is yet another invitation by the Claimant for this court to descend into the workplace to determine internal issues of human resource management. 12.It is deposed that on 13th January 2026 the Grievant was issued with a letter of transfer from Naitiri to Kabras whereat his services as a water analyst were in dire need. The transfer was to take effect immediately by 14th January 2026 and the Grievant was entitled to a transfer allowance. 13.It is further deposed that the Grievant refused to accept and acknowledge the letter of transfer and or to move to his new station and at that stage the Respondent was entitled to deny him access to the Naitiri facility and mark him absent from duty. It is affirmed that at no time or point did the Respondent wish or intend to dismiss or terminate the Grievant. It is further deposed that the Respondent has not and does not intend to interfere with the Grievant’s trade union activities, including his intention to vie for a leadership position. 14.It is deposed that the Grievant has in the past served at Kabras which is about 67km from Naitiri and hence the issue of him or his family suffering from the transfer is unfounded. It is further stated that the matter is res judicata the same allegedly having been dealt with and determined in the above-mentioned cause. 15.In the further affidavit sworn by David S. Wambasa, the Grievant, on 9th February 2026, it is deposed that his earlier transfer from Kabras to Naitiri in 2024 was caused by lack of raw materials for sugarcane milling hence the circumstances were different and justified. He insisted that the new transfer from Naitiri to Kabras is intended to intimidate and harass him for his engaging in lawful trade union activities. 16.It is objected that the application is res judicata as the instant application is purportedly based on a completely different set of facts and circumstances. The Grievant insists that the transfer is malicious and calculated to punish him for exercising his constitutional and statutory rights to engage in lawful trade union activities and leadership. It is deposed that the transfer is in violation of his rights to fair labour practices. III. Submissions 17.It is submitted for the Claimant that the transfer of the Grievant is not supported with a good reason, sufficient notice, it is arbitrary, and that the Grievant was not given time and opportunity to raise his concerns. It is submitted that the Respondent lacks a transfer policy of its employees resulting in arbitrary and irregular transfer of employees such as the one facing the Grievant. 18.It is submitted that while an employer has the prerogative in the management of its human resource and personnel, in transferring of an employee an employer ought to consider the factors mentioned above. It is submitted that the letter of transfer stated that the same was “with immediate effect” thereby denying the Grievant any chance of appealing or challenging the same within the internal mechanism of the Respondent. 19.It is further submitted that employees are not commodities to be moved “with immediate effect” without due consideration of their human dignity. It is submitted that such action violated the constitutional rights of the Grievant as enshrined in Articles 28, 41, & 47 of the Constitution. It is submitted that the Grievant was denied a right to be heard in the matter as the Respondent shut all doors on him contrary to the provisions of the Fair Administrative Actions Act. 20.It is further submitted that the transfer shall cause undue hardship to the Grievant who shall have to cover a distance of 134km each day at a great expense in fuel or traveling expenses of approximately Kshs66,976/= per month that he cannot afford. It is submitted that the transfer shall affect the family of the Grievant especially the young school-going children. In support of this submission the decision in Sandy Mokeira Morara V Principal Secretary Ministry of Lands & Physical planning Nairobi ELRC Petition No. 31 of 2018 is cited. 21.On the argument by the Respondent that the issue of the transfer of the grievant is res judicata, it is submitted that the circumstances and the context in which the court (Keli J) made the ruling alluded to elsewhere in this ruling was completely different and, in any event, the court in that ruling was clear that the Grievant was free to challenge the transfer on valid grounds. 22.It is submitted that the transfer is directly pegged on the lawful activities of the Grievant as a member of the Claimant with ambitions of becoming a branch official. It is submitted that the transfer flies on the face of Sections 4 & 5 of the Labour Relations Act. It is submitted that the transfer is intended to intimidate and harass the Grievant and, in the process, discourage other employees from taking up membership with the Claimant and or engaging in lawful union activities and projects, including taking up positions of leadership. 23.Counsel for the Respondent identified the following issues for determination – Whether the application is res judicata; Whether the grievant should be granted the prayers sought; and, Who should bear the costs of the application. 24.On the first issue, it is submitted that an employer has an inherent power in the management of its workforce and that this very issue was deliberated upon and decided by this court (Keli J) in ELRC No. E008 of 2024 alluded to above. Citing Dokhole & Another V Usinfecha & 5 Others (2025) KEELC 3266 (KLR), it is submitted that the Claimant is litigating on an issue that has already been heard and determined between the same parties. It is submitted that in this regard the instant application has been filed in abuse of the court process. 25.It is reiterated that the transfer of the Grievant is not a big deal as portrayed by the Claimant as the Respondent is simply exercising its prerogative in management of its workforce. The court is urged not to interfere with this prerogative. 26.On the second issue, counsel cited Geilla V Cassman Brown & Co Ltd (1973) EA 358 submitting that the Claimant has failed to establish a prima facie case, irreparable loss if the interim orders are denied, and that the balance of convenience is heavily in favour of denial of the application. 27.It is submitted that a colleague of the Grievant, Mr. Andrew Ligare, was transferred alongside the Grievant from Kabras to Naitiri and subsequently transferred back to Kabras and he complied without drama. It is submitted that the transfer of the Grievant was done in good faith with the intention of optimizing productivity and profitability and the Grievant is misconceived about the relationship between the transfer and his lawful union activities. It is submitted that the Respondent has not contemplated and does not intend to terminate or dismiss the Grievant. 28.It is submitted that the Respondent has taken all steps to accommodate the Grievant even after he refused to acknowledge the letter of transfer. It is submitted that no written protest or objection was made and or presented by the Grievant and, in any event, there is no evidence that he has a young family residing with him at Naitiri. It is submitted that the claimant has not demonstrated undue hardship that may be occasioned to him by the transfer. 29.It is further submitted that the Respondent has never had any intention of interfering with the Grievant’s lawful union activities and it is not privy to the alleged activities concerning registration of a branch of the Claimant at Naitiri or the Grievant being a contestant in union elections. 30.That court is urged not to interfere with the prerogative of the Respondent as an employer in managing its workforce and human resource. In that regard, it is submitted that the balance of convenience tilts in favour of the court denying the application. It is submitted that the transfer of the Grievant is intended to fill a genuine gap at Kabras. IV. Analysis & Determination 31.The facts and the circumstances leading to the filing of this cause and the application have been set out in the preceding parts of this ruling. It is a cause challenging the transfer of the Grievant from Naitiri to Kabras and the application is intended to stop the transfer in the interim pending the hearing and determination of the cause. In my considered view, this is an unfortunate cause and application as it portends a sour relationship between the employer and the employee. It is not a healthy litigation but, of course, the Claimant and the Grievant have a right to approach the court as they have done seeking for appropriate reliefs for what they deem to be unfair action by the Respondent. 32.This court (ELRC) has stated time without number that it has no business interfering with the management of the workplace, including the workforce and the human resource factor. Unless for very good reasons, the court should not descend into the workplace and control the management thereof. However, the court may interfere where there is demonstrated that the action, such as transfer, is unfair and unjust and hence against the law. Such unfairness or injustice may include where the transfer is intended to intimidate, harass, coerce, or corner an employee in a manner that is against the law, rules of natural justice, or established policies and guidelines. 33.The Claimant alleges that the transfer of the Grievant from Naitiri to Kabras is intended to punish or curtail him from exercising his lawful trade union rights including contesting leadership of the union branch of the Claimant. It is alleged that the transfer will cause hardship to the Grievant and that he was denied an opportunity to challenge the same. 34.In Sandy Mokera Morara V Principal Secretary Ministry of Lands & Physical Planning (supra), the court held that for a transfer to be fair and just there has to be a good reason, sufficient notice, should not be arbitrary and, an employee should be given an opportunity to be heard in objection to the transfer or any accommodation needed. 35.As far as the reason for the transfer goes, it is the Respondent’s case that the services of the Grievant as a water analyst are needed at Kabras. The court has no way of verifying this and the Claimant has not demonstrated any reason as to why the court should reject that reason. On notice, the “with immediate effect” transfer is rather too abrupt for any employee in the contemporary economic times. In my considered view, the Respondent ought to have given to the Grievant a reasonable notice to prepare for the transfer, including organizing his family, before joining the team at Kabras. In that regard, the Respondent was not fair and just as the notice was neither sufficient nor reasonable. It was too short. 36.However, the court is not convinced that the transfer was arbitrary or against the law. There is no evidence in support of the allegation by the Claimant that the transfer was intended to curtail lawful trade union activities by the Grievant. In fact, the Respondent’s case is that it was not even aware of the registration of the Naitiri branch of the Claimant or that the Grievant was contesting any position or that there were elections coming up. 37.It is important to note that the Grievant did not object to the transfer in writing. His allegations that he attempted to contact the management but was denied access is neither here nor there. It is important to note that the Claimant adamantly refused to accept or acknowledge the letter of transfer. This conduct portrays a predetermined mind of an employee determined to refuse to move on transfer. The court does cannot infer any malice, arbitrariness, unreasonableness, caprice, intimidation, harassment, or other unlawful intention in the transfer. 38.In any event, the Grievant ought to have reported to his new posting and then object to the transfer having obeyed the employer in that regard. The court cannot countenance that sort of misconduct. A rhetorical question arises - What would happen if all employees in an entity were to refuse to move on transfer? That entity would most likely collapse with mass loss of jobs and business. This conduct by the Grievant is likely to entrench impunity and disrespect for the authority and management of the workplace and the same must be nipped in the bud. 39.It is my considered view that if the Grievant needed time to prepare for the transfer, he has had the time. However, there is no evidence that the Grievant has a young family that lives with him at Naitiri or that his children are going to school thereat. The court further notes that the Grievant has in the past worked at Kabras, his new station, and the distance from Naitiri is just about 67km. The Respondent has stated that it was always ready to facilitate his transfer by way of the applicable transfer allowance. 40.The effect of all the foregoing is that the Claimant has failed to satisfy the conditions for the grant of the interim orders sought in the application based on the principles in Geilla V Cassman Brown (supra). The Claimant has failed to establish a prima facie case and demonstrate irreparable loss or damage. The balance of convenience tilts heavily in favour of the court denying the interim orders. 41.The Grievant ought to move with speed on transfer as directed by the employer as the same is a lawful direction. The Respondent has demonstrated patience in that no disciplinary action has been taken against the Grievant for his refusal to move on transfer as directed. The Grievant should not make the situation worse or complicated and the court shall issue orders that shall aid his movement on transfer as hereunder.Ordersi.The application by the Claimant dated 15th January 2026 is hereby dismissed.ii.The Grievant shall within 30 days of this ruling report for duty at Kabras without fail.iii.The Respondent shall facilitate the movement of the Grievant to his new station with the applicable transfer allowance.iv.No order for the stay of the transfer was issued by the court and hence the Grievant is thus not entitled to any pay for the days he failed to report to work.v.Unless the Grievant fails to report to work as ordered herein, the Respondent shall not take any disciplinary action against him arising out of the contested transfer.vi.Costs of the application shall be in the cause. DELIVERED VIRTUALLY, DATED, AND SIGNED AT KAKAMEGA THIS 25TH DAY OF JUNE 2026.....................................DAVID NDERITUJUDGE