Kenya Hotels & Allied Workers Union v Sun Africa Hotels Limited & another; Kenya Union of Domestic Hotels, Educational Institutions and Hospital Workers (KUDHEIHA Workers) (Interested Party) (Cause 88 of 2023) [2024] KEELRC 1195 (KLR)

3. The impugned representation and pleadings, court process, documents and all are grossly misconceived and seriously incompetent and the same must be struck out in limine for being fatally fiawed and incurably defective. 2. For these reasons, the 1st respondent is seeking that a declaration be issued that representation by the Union Oficials and all the pleadings, court process and documents filed herein and in ELRC No.924 of 2017 are irregular and be expunged in limine or dismissed ex debito justitiae with costs to the 1st respondent. 3. In response, the interested party filed the Replying Afidavit of Hezron Onwonga an employee of the interested party and appointed by the General Secretary under the provisions of Section 2(e ) of the Labour Relations Act, 2007 (the LRA) to represent the interested party in these proceedings. He avers that the general secretary of the interested party is mandated under the LRA to issue written authority to its representative to attend court on his behalf. His letter of authority to attend was issued and is dated 29 January 2024. The 1st respondent has not given any legal basis for the objections dated 19 April 2024 which should be dismissed with costs. 4. Parties attended and agreed to address these objections by way of written submissions. 5. Only the 1st respondent and interested party participated. The claimant opted to take court directions. 6. The 1st respondent submitted that the interested party is represented by an oficial without authority and any pleadings, records and documents filed by such person are fatally defective and should be expunged from the record. In the case of Kenya Engineering Workers Union v Rift Valley Engineering Limited Cause No. E011 of 2022 (Nakuru) the court held that Section 22 of the Employment and Labour Relations Court Act, the Advocates Act and Order 9 of the Civil Procedure Rules are not a contradiction which requires the party attending court to be represented by its legal representative. The 1st respondent also relied on the case of KMPDU v The Nairobi Hospital (Kenya Hospital Association) Cause No.76 of 2020; Charitable Organizations (KUEVACO) v Board of Governors – Maina Wanjigi Secondary School Cause No.744 of 2013. Determination 7. The single issue in the objections is whether the interested party is properly represented in these proceedings. 8. Cause N.924 of 2017 is herein consolidated as the parties are the same and the cause of action is closely intertwined. The matter was scheduled for hearing on 25 April 2024 and before the hearing, the 1st respondent filed these objections a few days before on 19 April 2024. This efiectively frustrated the hearing. 9. Ordinarily, preliminary objections should be on pure points of law and not facts. Such legal issues should be raised at the earliest possible opportunity to avoid parties going into pre-trial directions and at the eve of the hearing, objections are raised. Such is a waste of opportunity. 10. Parties attended before this court unlike other superior courts are regulated under a difierent regime of laws and rules of procedure. Under Section 22 of the Employment and Labour Relations Court Act, 2011 a trade union is allowed to attend and represent the interests of its members. A trade union oficial hence enjoys special standing with the court, unlike proceedings before the High Court. 11. A trade union registered under the provisions of the LRA should be represented in legal proceedings by the General Secretary. Under Section 2(e) of the LRA, the General Secretary is allowed to appoint https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1195/eng@2024-05-09 2

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another person to represent the union in court. Such letter of authority to act on behalf of the union should be in writing. Hence, under the LRA, an authorized representative of the trade union is defined as follows; authorised representative” means— (a) the general secretary of a trade union; (b) an employer or the chief executive oficer of an employer; (c) the secretary of a group of employers; (d) the chief executive or association secretary of an employers’ organisation; or (e) any person appointed in writing by an authorised representative to perform the functions of the authorised representative; 12. Mr. Hezron Onwonga in his Replying Afidavit has filed a letter of authority to act and attend for the interested party as the authorized representative. The 1st respondent has not addressed such a letter of authority. This authority is secured under the law and obtained in proceedings such as herein. 13. In the case of Kenya Medical Practitioners, Pharmacists and Dentists Union v County Government of Embu (Cause E017 of 2023) [2024] KEELRC 62 (KLR) (26 January 2024) (Ruling), the court held that a claim filed on behalf of a trade union must be initiated by an authorized persons under the provisions of LRA. This position was reiterated in the case of Kenya Union of Commercial Food Allied Workers v Fralet Agencies (Employment and Labour Relations Claim 29 of 2023) [2023] KEELRC 2208 (KLR) (22 September 2023) (Judgment). 14. Parties have been attending proceedings from the year 2017 when Cause No. 924 of 2017 was filed. No objections were filed until the matters were consolidated and scheduled for hearing. 15. The objections have no basis in law or fact. The authorities cited by the 1st respondent analysed relates to a difierent set of facts and foundations. 16. In this case, the interested party has filed a letter of authority and assigned its oficer to attend proceedings herein. This is lawful and valid. 17. Objections by the 1st respondent dated 19 April 2024 are without merit and hereby dismissed. The 1st respondent to meet costs due to the interested party at Ksh.10, 000 and Ksh.5, 000 to the claimant. A hearing date for the main suit shall be issued. DELIVERED IN OPEN COURT AT MOMBASA ON THIS 9 DAY OF MAY 2024. M. MBARŨ JUDGE In the presence of: Court Assistant: Japhet ……………………………………………… and ……………………………… https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1195/eng@2024-05-09 3

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