Bakery, Confectionery, Food Manufacturing and Allied Workers Union v Norda Industries Ltd & another
The bottom line
#Kenya's Employment Court refused to strike out a union's CBA lawsuit against Norda Industries and an outsourcing firm, so the case proceeds to full trial.
What this practically means
#Executive summary
#Key legal issues
#Limitation under section 89 of the Employment Act
The objection fails; section 89 does not apply to this collective labour dispute, and in any event the claim is a continuing injury not yet ceased
The court assumed arguendo the Claimant's continuing-injury position per German School Society v Ohany, noting the injury would only cease upon signing the CBA, which had not occurred. It then held the dispute arises under the Labour Relations Act (collective employment law), not a contract of service or the Employment Act, so section 89 is inapplicable. Constitutional claims are also not defeated by limitation statutes.
Recognition threshold and locus standi
The Recognition Agreement remains in force absent revocation by the National Labour Board, and lack of a Recognition Agreement does not bar the union's suit
Revocation power vests exclusively in the National Labour Board under section 54(5) of the Labour Relations Act; falling below the threshold does not automatically void the agreement (Micato Safaris). A Recognition Agreement is only essential for collective bargaining (Modern Soap Factory), so the locus standi objection is misplaced. Whether the threshold is met is a matter for trial.
Striking out for non-disclosure of cause of action
The request is untenable because the Respondents supported it with affidavit evidence contrary to Order 2 rule 15(2)
Order 2 rule 15(2) of the Civil Procedure Rules prohibits evidence in support of such applications. The Respondents' affidavits invoked averments to support the non-disclosure plea, rendering the request non-compliant with an express provision of law.
Misjoinder of parties
The plea is declined; a plaintiff in doubt may sue multiple defendants and the court determines liability at trial
Order 1 rule 9 provides no suit shall be defeated by misjoinder; Order 1 rule 7 permits joining defendants where the plaintiff is in doubt. The dominus litis principle entitles a claimant to choose whom to sue (Civicon). Privity of contract is a question of fact and law for trial, particularly given the 1st Respondent's admission that some claimant members are its employees.
Compelling execution of an unagreed CBA
The suit is not incompetent; the court may compel conclusion of CBA negotiations if unreasonable refusal is proved at trial
CBAs are substantially regulated by statute; section 57(1) of the Labour Relations Act obliges an employer with a Recognition Agreement to conclude a CBA. While negotiations should be voluntary, the court may compel an employer who places unreasonable obstacles (Micato Safaris). Whether the refusal was without valid reason is for trial.
Employer status of the outsourcing company
Not determinable on interlocutory applications; an outsourcing company may stand as employer unless the arrangement is a cloak to evade employer obligations
Abyssinia Iron & Steel holds an outsourcing company stands in the position of an employer unless the arrangement is a cloak. The two Respondents sharply disagree on who employs the members, demonstrating this is not a clear case for conclusive interlocutory findings; the legitimacy of the outsourcing must be tested at full trial.
Legal principles established
#- A Recognition Agreement is not automatically revoked when union membership falls below the statutory threshold; revocation vests exclusively in the National Labour Board
- Absence of a Recognition Agreement does not bar a trade union from litigating on behalf of its members; it is only essential for collective bargaining
- Section 89 of the Employment Act applies to proceedings arising from a contract of service or under the Employment Act, not to collective labour disputes under the Labour Relations Act
- Statutes of limitation do not defeat constitutional claims; only laches may apply to inordinate and unreasonable delay
- A plaintiff is dominus litis and may join defendants it believes it has a cause of action against where in doubt as to whom redress lies
- Striking out pleadings is a draconian remedy reserved for the clearest of cases and as a last resort
- An employer with a subsisting Recognition Agreement is under a statutory duty to conclude a CBA, and the court may compel conclusion where the employer places unreasonable obstacles
- An application to strike out a pleading for non-disclosure of a cause of action cannot be supported by evidence
Court orders
#- 1.The applications dated 23rd September 2025 and 21st October 2025 are unmerited and are dismissed
- 2.Costs of the applications to abide the outcome of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Labour Relations Act matters; articles 36 and 41 of the Constitution invoked in the claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bakery, Confectionery, Food Manufacturing and Allied Workers Union v Norda Industries Ltd & another", Case Analysis (2026). Cause No. E777 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2576/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.