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ELRCDismissedNot stated in the judgment· [2025] KEELRC 1469 (KLR)

Kenya Union of Commercial, Food and Allied Workers v Laxmi Hardware Limited (Cause E060 of 2024) [2025] KEELRC 1469 (KLR)

Employment and Labour Relations Court
19 May 2025
2,065 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court dismissed a union's bid to protect workers because the union offered no actual evidence of victimization.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Kisumu (Dr. Jacob Gakeri, J) dismissed a union's Notice of Motion dated 17th July 2024, filed under certificate of urgency, seeking interim orders restraining the respondent from victimizing, intimidating, coercing, harassing, terminating, dismissing or disciplining its members on account of trade union membership. The claimant union deposed, through its Branch Secretary Benjamin Tangara, that it had recruited 16 of the respondent's 17 employees and forwarded check-off forms and a draft Recognition Agreement which the respondent failed to answer. The respondent, through director Dhan Sukhbhai Ravjimbhai Varsani, denied having employees, asserting that the workers were employed by a third party, Sytamex Ventures Ltd, that no Recognition Agreement had been served, and that the application was an abuse of process. Framing the sole issue as whether the motion was merited, the court held the matter turned on the applicant's burden of proof and the balance-of-probabilities standard, applying Sections 107 and 112 of the Evidence Act and Jethwa v Shah. The Supporting Affidavit was silent on any acts or omissions from which imminent victimization could be inferred, and no union member swore an affidavit alleging such conduct. The claimed outsourcing arrangement was also unproven, no written contract having been availed. The application was accordingly dismissed with no order as to costs. A notice of preliminary objection on standing had earlier been dismissed by ruling delivered on 29th January 2025.

Key legal issues

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01

Whether the applicant discharged its burden of proof to warrant the injunctive relief sought

Holding

The application was not merited; the applicant adduced no sufficient evidence of victimization, intimidation, coercion or harassment by the respondent and the motion was dismissed

Reasoning

The court applied Sections 107 and 112 (cited as Section 8 of the Act) of the Evidence Act and Jethwa v Shah, holding that it is not sufficient merely to swear an affidavit. The Supporting Affidavit was silent on acts or omissions from which imminent victimization could be inferred, and no member of the applicant union swore an affidavit alleging such conduct. The outsourcing arrangement with Sytamex Ventures Ltd was also unproven as no written contract was availed and the applicant did not contest that deposition.

p. 4
02

Whether the outsourcing arrangement with Sytamex Ventures Ltd displaced the respondent's status as employer

Holding

The court found the outsourcing claim unproven on the materials, noting no written contract was availed

Reasoning

If believed, the respondent had outsourced its human resource function and paid Sytamex Ventures Ltd a management fee as employer. However, an outsourcing arrangement is typically a written contract between the parties and none was availed. Notably, the applicant did not contest this deposition or seek evidence on the relationship between the respondent and Sytamex Ventures Ltd.

p. 3

Legal principles established

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  • Whoever desires a court to give judgment on a legal right dependent on facts must prove those facts; the burden of proof lies on the person asserting the fact
  • In civil cases the standard of proof is on a balance of probabilities

Court orders

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  1. 1.The applicant's Notice of Motion dated 17th July, 2024 dismissed with no Order as to costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12
  • Labour Relations ActSections 4, 48, 50, 54 and 74
  • Labour Relations ActSection 54(1)
  • Employment ActSections 87 and 19(1)
  • Evidence ActSection 107(1) and (2); Section 8 (as cited by the court)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Not specified
  • Constitution of KenyaArticles 36 and 41

Cases cited (16)

  • Jethwa V Shah t/a Supreme Styles
    [1989] eKLR
  • Raila Amolo Odinga & another V IEBC & 2 Others
    [2017] eKLR
  • Gatirau Peter Munya V Dickson Mwenda Kithinji & 2 Others
    [2014] eKLR
  • Mbuthia Macharia V Anna Mutua Ndwiga & another
    [2017] eKLR
  • Muriungi Kanoru Jeremiah V Stephen Ungu M’warabua
    [2015] eKLR
  • Statpack Industries Ltd V James Mbithi Munyao
    HCCA No. 152 of 2003
  • Treadsetters Tyres Ltd V John Wekesa Wephukalu
    [2010] eKLR
  • Alfred Kioko Muteti V timothy Miheso & another
    [2015] eKLR
  • Sally Kibii & another V Francis Ogaro
    [2012] eKLR
  • Suleiman Kasuit Murunga V IEBC & 2 others
    [2018] eKLR
  • Alice Wanjiru Ruhiu V Messiac Assembly of Yahwe
    [2021] eKLR
  • Mary WambuiKabuguo V Kenya Bus Servies Ltd
    [1997] eKLR
  • William Kabogo Gitau V George Thuo and 2 others
    [2010] eKLR
  • re HC (minors)
    [1996] A.C 563 at 586
  • Miller V Minister of Pension
    [1947] ALLE R 373
  • Spring Board Capital Ltd V Njenga & another
    [2024] KEHC 7013 (KLR)
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act, Sections 4, 48, 54 and 74 of the Labour Relations Act, Section 87 of the Employment Act and the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Laxmi Hardware Limited (Cause E060 of 2024) [2025] KEELRC 1469 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1469/eng@2025-05-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.