Kenya National Private Security Workers Union v Kenya Union of Special & Professional Guards & 29 others

NINE ONE ONE RESPONDENT LIMITED.....................10TH GROUP GUARDAWORLD SERVICES (KENYA) RESPONDENT LIMITED...........................................11TH CREST SECURITY RESPONDENT SERVICES SECURITY GUARDS RESPONDENT SERVICES LIMITED……..…12TH LIMITED………13TH INTER SECURITY RESPONDENT SERVICES……………………..14TH FIDELITY SECURITY RESPONDENT LIMITED.........................15TH RILEY FALCON RESPONDENT ROBINSON RESPONDENT LIMITED………………...17TH SECURITY LIMITED……………………….18TH FARGO COURIER RESPONDENT MERU HOMES RESPONDENT SERVICES..............16TH SECURITY LIMITED.................19TH SECURITY LEE SECURITY RESPONDENT LIMITED..................................20TH TRACE SECURITY RESPONDENT SERVICES LIMITED.............21ST SOLVIT LIMITED.............................................22ND RESPONDENT LAVINGTON RESPONDENT SECURITY HATARI SECURITY RESPONDENT LIMITED....................23RD LIMITED…………………… 24TH Page 2 of 36

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GUARD WORLD RESPONDENT LIMITED............................26TH MOCAM SECURITY RESPONDENT AFRICA LIMITED.......................27TH SECURITY LIMITED...................28TH SENECA EAST RESPONDENT GREENHILLS RESPONDENT LIMITED...............25TH SECURITY THE HONOURABLE RESPONDENT GENERAL........29TH ATTORNEY AND CENTRAL ORGANIZATION OF TRADE PARTY UNIONS, COTU (K)…………………..INTERESTED RULING 1 The Claimant/ Applicant filed a Notice of Motion application dated 16th March 2026 seeking orders: 1. Spent 2. Spent 3. The hearing date of the Notice of Motion dated 8t September 2025 be reviewed from 13th October 2025 to a date before 20t September 2025. 4. OR ALTERNATIVELLY, the court do review its order of 10th September 2025 and instead grant prayer (b) in the application dated 8th September 2025. 5. Any further and such directions as the court will deem fit to all suits involving the parties herein before a single forum. Page 3 of 36

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Claimant/Applicant’s Case 2 The Applicant avers that the 1 st Respondent has commenced an avalanche of suits against security firms remitting union dues to the Claimant, citing three such suits: including but not limited to: Case No. ELRC E8282025 Kenya Union of Special and Professional Guards (KUSPROG) versus G4s; Case No. ELRC E491-2025 Kenya Union of Special and Professional Guards (KUSPROG) versus Nine One One Group Limited; Case No. ELRC E8162025 Kenya Union of Special and Professional Guards (KUSPROG) versus Securex Agencies Ltd. 3 The Applicant states that more of such suits are anticipated, and that common in all of them is a prayer for remission of the same union dues that are in issue both in the instant suit and in Petition No. 140 of 2024 (Kenya National Private Security Workers Union v Kenya Union of Special and Professional Guards), which is pending judgment on 2nd October 2025. 4 It is the Applicant's case that private security firms prepare their payroll by the 20th of each month, and that unless Legal Notice No. 1 of 2025 (Kenya Union of Special and Professional Guards) (Deduction of Union Dues) Order, 2024 is stayed, private security guards will suffer parallel and double deductions of union dues; the first remitted to the Claimant and the second to the 1 st Respondent, Page 4 of 36

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thereby occasioning irreversible loss to both the security guards and the Claimant. 1st Respondent’s Case 5 In opposition to the application, the 1 st Respondent filed a replying affidavit dated 9th October 2026, sworn by its Secretary General, Samson Omechi Ong’era. 6 The 1st Respondent avers that the application and the entire suit are incompetent, misconceived, frivolous, vexatious and disclose no reasonable cause of action against it. The suit does not disclose any known dispute between the parties and is founded on matters that have previously been determined by the Court. 7 It avers that the question regarding its registration, representational boundaries and jurisdiction was conclusively determined during its registration process in Nairobi ELRC Appeal No. 9 of 2018 and Kisumu ELRC Appeal No. 5 of 2020, rendering the present claim res judicata. 8 The 1st Respondent further contends that the Claimant failed to invoke the statutory dispute resolution mechanisms under Sections 62 and 69 of the Labour Relations Act before approaching the Court under Section 73. Additionally, it has neither demonstrated authority to sue on behalf of the 2nd to 28th Respondents nor Page 5 of 36

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established the requisite locus standi to challenge conciliation outcomes to which it was not a party. The 1 st Respondent therefore asserts that this Court lacks jurisdiction to entertain the suit. 9 The 1st Respondent avers that the orders sought by the Claimant would unlawfully interfere with its statutory mandate of representing its members and would violate employees’ constitutional right under Articles 36 and 41 of the Constitution to freely join a trade union of their choice, as read together with Sections 4, 5 and 48 of the Labour Relations Act and its registered constitution. 10 The 1st Respondent avers that Legal Notice No. 1 of 2025, being The Kenya Union of Special and Professional Guards (Deduction of Union Dues) Order, 2024, was lawfully issued pursuant to Section 48(2) of the Labour Relations Act after it fully complied with all statutory requirements. It submitted the requisite application, bank details, certificate of registration, extract of its constitution and duly signed check-off forms from employees authorising deduction of union dues, all of which were verified by the Cabinet Secretary before the Legal Notice was gazetted. 11 It contends that the Claimant’s Legal Notice No. 7 of 2017 similarly operates under Section 48 of the Labour Relations Act and does not invalidate or preclude the issuance of Legal Notice No. 1 of 2025. Page 6 of 36

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12 It is the 1st Respondent’s case that the existence of recognition agreements or collective bargaining agreements does not prevent it from recruiting or representing employees who voluntarily join its membership, such representation being guaranteed under Article 41 of the Constitution and Sections 4, 5, 48 and 49 of the Labour Relations Act. 13 The 1st Respondent further contends that the Claimant has neither pleaded nor demonstrated any legal basis for the suspension, revocation or stay of the Gazette Notice and has failed to invoke Section 50 of the Labour Relations Act, which specifically provides the grounds upon which the Cabinet Secretary may revoke or suspend a deduction order. 14 The 1st Respondent avers that the Cabinet Secretary, who issued the impugned Legal Notice under statutory authority, has not been joined in the proceedings. It maintains that the Claimant has equally failed to demonstrate how the impugned Legal Notice infringes its representational rights since representation is determined by employees’ free choice rather than by the mere existence of another union or historical recognition agreements. 15 The 1st Respondent states that the suit is intended to frustrate its lawful operations, deprive it of the financial resources necessary to represent its members and Page 7 of 36

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interfere with employees’ constitutional freedom to belong to a trade union of their choice. 16 It asserts that it is unlawful and malicious for the Claimant to purport to sue on behalf of employers in an attempt to interrupt the implementation of statutory processes under Sections 48, 62, 69 and 73 of the Labour Relations Act. 17 The 1st Respondent contends that granting the orders sought would unjustifiably interfere with the statutory functions of the Cabinet Secretary and prejudice thousands of employees who have voluntarily joined the 1st Respondent. 18 The 1st Respondent further avers that the Claimant is indirectly challenging its registration and representational boundaries despite having previously objected to its registration and having fully participated in the proceedings culminating in the judgments delivered in Nairobi ELRC Appeal No. 9 of 2018, Kisumu ELRC Appeal No. 5 of 2020 and Nairobi ELRC Petition No. E140 of 2024. 19 It is the 1st Respondent’s case that the present proceedings amount to an impermissible attempt to relitigate matters already determined by competent courts and are therefore barred by the doctrine of res judicata. 20 It further states that the Claimant’s allegation that it was registered only to represent "Special and Professional" Page 8 of 36

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guards is erroneous and contradicted by the pending appeal filed by the Claimant itself. 21 The 1st Respondent asserts that unionisable employees within the private security industry are at liberty to join either the Claimant or the 1st Respondent pursuant to Sections 4 and 48 of the Labour Relations Act. 22 It states that since its registration on 29 th August 2024, it has recruited over 15,000 unionisable employees within the private security industry. 23 It further avers that any issue relating to demarcation was conclusively addressed during its registration proceedings under Section 14(1)(d) of the Labour Relations Act and, in any event, such disputes ought to be dealt with administratively by the Registrar of Trade Unions before recourse to the Court. 24 The 1st Respondent contends that it stands to suffer irreparable prejudice if the orders sought are granted as they would arrangements, disrupt deny existing employees representational their constitutional freedom of association and undermine industrial harmony. 25 The 1st Respondent avers that the Claimant has filed multiple suits in different courts arising from substantially the same cause of action, thereby abusing the court process. Page 9 of 36

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26 It is the 1st Respondent’s case that the Claimant has failed to identify any statutory provision breached by either the Cabinet Secretary or the 1st Respondent and has not established any real dispute between the parties. According to the 1st Respondent, the application fails to satisfy the threshold for grant of interlocutory reliefs and, if allowed, would prejudice thousands of its members and undermine the industrial relations framework established under the Labour Relations Act. 27 In its further affidavit dated 28th April 2026, the 1st Respondent states that the issues concerning the implementation of Legal Notice No. 1 of 2025, alleged double deductions of union dues and employers' obligations thereunder have previously been determined in Nairobi ELRCC No. E828 of 2025, Kenya Union of Special and Professional Guards (KUSPROG) v G4S Kenya Limited, and that the question relating to agency fees is the subject of Nairobi ELRCC No. E1249 of 2025. 28 It avers that Legal Notice No. 1 of 2025 has been implemented since 17th January 2025 by several employers within the private security industry, including the 7th, 10th and 11th Respondents, following compliance with the statutory requirements under Section 48 of the Labour Relations Act. 2nd Respondent’s Case Page 10 of 36

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29 In opposition to the application, the 2 nd Respondent filed a replying affidavit dated 3rd November 2025, sworn by its Human Resources Director, Helgah Kimanani. 30 It is the 2nd Respondent’s case that it is a private security company employing over 10,100 employees, approximately 9,000 of whom are unionisable guards. 31 It states that it has a valid and subsisting Recognition Agreement with the Claimant under which the Claimant is recognised as the sole labour organisation representing the interests of all its unionisable employees. 32 The 2nd Respondent avers that pursuant to the Recognition Agreement, it has negotiated and remains bound by a valid Collective Bargaining Agreement (CBA) with the Claimant. 33 The 2nd Respondent asserts that, in compliance with the Labour Relations Act, the Recognition Agreement and the CBA, it is legally obligated to deduct and remit union dues for the Claimant’s members and agency fees for nonmembers pursuant to Legal Notice No. 139 of 2021 (The Kenya National Private Security Workers Union (Deduction of Agency Fee) (No. 2) Order). 34 The 2nd Respondent states that it is equally bound to deduct and remit union dues under Legal Notice No. 7 of 2017 (The Kenya National Private Security Workers Union (Collection of Union Dues) Order), in which it is expressly Page 11 of 36

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listed, and that it has fully complied with both Legal Notices. 35 The 2nd Respondent further avers that it is aware of Legal Notice No. 1 of 2025 (The Kenya Union of Special and Professional Guards (Deduction of Union Dues) Order, 2024), which requires employers with members of the 1 st Respondent to deduct Kshs. 250 monthly from employees who have executed check-off forms and to remit the deductions to the 1st Respondent. 36 It contends that implementation of the said Legal Notice makes it impossible for it to discharge its duty of care to employees by ensuring that wage deductions are lawful, accurate and do not occasion undue financial hardship. 37 It is the 2nd Respondent’s case that implementation of Legal Notice No. 1 of 2025 ought to be stayed in order to preserve the sanctity of the existing Recognition Agreement and CBA with the Claimant, prevent the creation of an unlawful parallel check-off system, protect its employees from the prejudice of double deductions, and shield it from conflicting legal obligations and possible penalties. 38 The 2nd Respondent further states that it received a letter dated 28th October 2025 from Kijala & Muganda Advocates, acting on behalf of 2,126 members of the 1 st Respondent and a nominated convener of its National Page 12 of 36

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Summit Assembly, demanding a stay of deduction and remittance of union dues to the 1st Respondent. 39 It avers that the advocates contended that the 1 st Respondent’s National Executive Council and Board of Trustees had not been constitutionally constituted, thereby rendering directions issued by its Secretary General for deduction of union dues unlawful. 40 The 2nd Respondent further contends that the said letter raises serious concerns regarding the governance of the 1st Respondent, alleging that its current officials are controlled by a former official, Jairus Khatere, who was removed from office following his conviction for the offence of theft by servant in Criminal Case No. 1410 of 2018, Republic v Jairus Khatere Shamalla. 41 It asserts that the letter and the judgment demonstrate significant internal disputes within the 1 st Respondent, lack of proper governance and a grave risk to the security and proper application of union funds. It therefore avers that compelling it to remit union dues to the 1 st Respondent exposes both the employees’ deductions and the union funds to substantial risk. 42 The 2nd Respondent maintains that it is in the interests of justice for the Court to grant the orders sought by the Claimant so as to avert irreparable harm to the long- Page 13 of 36

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established collective bargaining relationship within the private security sector. 23rd Respondent’s Case 43 In opposition to the application, the 23 rd Respondent filed Grounds of Opposition dated 13th November 2025 on the following grounds: 1. THAT the 23rd Respondent vehemently opposes the Claimant’s Application dated 8 th September 2025 as the same is fatally defective, misconceived, and untenable in law. 2. THAT the 23rd Respondent does not, and has never had, any Recognition Agreement with the Claimant and/or the 1st Respondent herein, as contemplated under Section 54 of the Labour Relations Act, thereby divesting the Claimant of any statutory mandate to purport to represent or act on behalf of employees of the 23rd Respondent. 3. THAT there equally exists no Collective Bargaining Agreement (CBA) between the Claimant and the 23 rd Respondent, nor between the Claimant and the 1 st Respondent, as envisaged under Part VI of the Labour Relations Act, and consequently, the Claimant has no contractual, legal, or enforceable basis to anchor the instant Application. 4. THAT in the absence of both a Recognition Agreement and a CBA, the Claimant is bereft of locus standi to institute, sustain, or prosecute any claims, representations, or bargaining rights against the 23 rd Page 14 of 36

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Respondent, and any attempt to do so is ultra vires, null, and void ab initio. 5. THAT the instant Application is a blatant abuse of the Court process, is incurably defective, and ought to be dismissed with costs, as it offends the statutory framework governing recognition, collective bargaining, and labour representation. Claimant/Applicant’s Submissions 44 The Claimant submitted that it has satisfied the threshold for the grant of conservatory orders staying the implementation of Legal Notice No. 1 of 2025 pending the hearing and determination of the suit. It placed reliance on Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR, that an applicant for conservatory orders must demonstrate an arguable prima facie case with a likelihood of success and a likelihood of prejudice absent the orders sought. 45 Reliance was further placed on Kamau & 35 others v Commissioner General, Kenya Revenue Authority & another [2022] KEHC 10284 (KLR), for the submission that the grant of conservatory orders also depends on the nature of the matter, including whether there is imminent danger of infringement of rights and fundamental freedoms under the Bill of Rights. Page 15 of 36

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46 The Applicant submitted that it has established a prima facie case founded on undisputed statutory instruments, recognition agreements and Collective Bargaining Agreements which remain valid and binding. The Claimant argued that Legal Notice No. 7 of 2017 and Legal Notice No. 139 of 2021 expressly recognised its entitlement to the deduction of union dues and agency fees from the employer Respondents. 47 It submitted that Legal Notice No. 1 of 2025 introduced a parallel deduction regime in favour of the 1 st Respondent without revoking or reconciling the earlier legal notices, thereby creating conflicting statutory obligations requiring employers to effect deductions from the same wage pool. According to the Claimant, this unresolved conflict between subsidiary legislative instruments issued under the same statutory framework demonstrated a clear and arguable case warranting preservation of the status quo pending trial. 48 The Claimant further submitted that its recognition rights were not negotiated merely statutory recognition but were agreements reinforced and by registered Collective Bargaining Agreements developed over several years. It argued that introducing a competing deduction regime without consultation or any mechanism for harmonising the existing industrial relations framework undermined settled labour relations and justified Page 16 of 36

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conservatory intervention until the legality of the competing regimes could be determined. 49 On prejudice, the Claimant submitted that implementation of Legal Notice No. 1 of 2025 would occasion grave and irreparable harm to employees and the Claimant itself. Relying on Section 19 of the Employment Act, 2007, it argued that the law strictly regulates deductions from employees’ wages to prevent unjustified financial burdens. 50 It is the Claimant’s submission that the impugned Legal Notice would expose employees to duplicated deductions, significantly reducing their net earnings, while the exhibited payslip of one employee demonstrated the substantial impact such deductions would have. The Claimant argued that this financial prejudice could not be ignored, particularly where employees had not authorised the additional deductions. 51 The Claimant further submitted that the implementation of the impugned Legal Notice would destabilise its established check-off arrangements by creating confusion among its members, who would perceive the additional deductions as attributable to the Claimant. The Claimant maintained that such institutional capacity to uncertainty threatened its discharge its statutory and contractual obligations, which depend upon predictable and orderly collection of union dues. Page 17 of 36

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52 The Claimant also submitted that there existed a real risk that monies deducted and remitted to the 1 st Respondent would be practically irrecoverable ultimately succeeded. It compounded by serious argued concerns even that if the suit this risk was regarding the 1st Respondent’s governance structures, thereby rendering the potential loss irreversible and strengthening the case for preserving the existing position through conservatory orders. 53 On the governance of the 1 st Respondent, the Claimant argued that the documentary evidence raised substantial and unrebutted concerns regarding its ability to lawfully receive and administer correspondence authored union funds. It referred on behalf of over to 2,000 members of the 1st Respondent alleging that key organs established under the union’s Constitution, including the National Executive Council and Trustees, had not been properly constituted. The Claimant submitted that these deficiencies rendered the 1st Respondent incapable of lawfully transacting its affairs or safeguarding members’ funds. 54 The Claimant further argued that the documentary record implicated one of the persons allegedly controlling the affairs of the 1st Respondent, Mr. Jairus Khatere, who had previously been convicted in Republic v Jairus Katere Shamalla, Criminal Case No. 1410 of 2018, for theft by servant involving monies belonging to a worker. It Page 18 of 36

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submitted that this history heightened concerns regarding the integrity of the 1st Respondent’s financial administration. 55 The Claimant submitted that these governance deficiencies offended the statutory framework under Part V of the Labour Relations Act, 2007, which vests trade union property and funds in duly appointed trustees, while Section 47 of the Act criminalises the misuse of trade union property and funds. 56 It is the Claimant’s submission that absent properly constituted trustees and governing organs, there existed no lawful body capable of receiving, holding or accounting for compulsory deductions remitted under Legal Notice No. 1 of 2025. It therefore maintained that, independent of the conflict between the legal notices, these governance concerns justified conservatory relief. 57 On the balance of convenience and public interest, the Claimant submitted that the grant of conservatory orders would merely preserve the prevailing position pending determination of the suit without extinguishing any rights accruing to the 1st Respondent under the impugned Legal Notice. Conversely, refusal of the orders would occasion widespread employee hardship through duplicate deductions, disrupt the Claimant’s institutional operations and expose deducted funds to potential loss. Page 19 of 36

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58 It argued that the public interest favoured maintaining stable industrial relations within the private security industry, submitting that the Labour Relations Act was enacted to foster orderly labour relations and that permitting competing deduction regimes to operate simultaneously risked industrial unrest. 59 Responding to the preliminary objections, the Claimant submitted that the Court possessed jurisdiction under Article 162(2) of the Constitution and Section 12(1) of the Employment and Labour Relations Court Act, since the dispute concerned competing recognition and check-off rights arising directly from employment and labour relations rather than a pure public law challenge suitable for judicial review. In support, it relied on Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, fundamental, arguing the that dispute although squarely jurisdiction fell within is the specialised jurisdiction of the Employment and Labour Relations Court. 60 On res judicata, the Claimant submitted that the doctrine was inapplicable because the present dispute only arose upon the promulgation of Legal Notice No. 1 of 2025, and no previous court had considered whether that Legal Notice could lawfully coexist with Legal Notice No. 7 of 2017 and Legal Notice No. 139 of 2021. Page 20 of 36

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61 On the objection concerning non-joinder of the Cabinet Secretary for Labour, the Claimant relied on Order 1 Rule 9 of the Civil Procedure Rules, 2010, arguing that no suit should fail for non-joinder of parties and that any defect was curable through joinder at any stage. It submitted that the interlocutory relief sought was capable of being enforced against the parties presently before the Court. 62 The Claimant further submitted that although subsidiary legislation enjoys a presumption of constitutionality and legality, such presumption does not shield it from judicial scrutiny where it creates direct conflict with existing subsidiary legislation issued under the same enabling statute. It argued that the question whether the competing Legal Notices could lawfully coexist constituted a substantive issue for trial, which justified the grant of conservatory orders to preserve the status quo pending determination. 63 Finally, the Claimant submitted that the conservatory orders sought were narrow and proportionate. It argued that it did not challenge the 1 st Respondent’s registration as a trade union, the constitutional right to freedom of association under Article 41 of the Constitution, or the right of employees to join a union of their choice. Rather, it sought only the temporary suspension of the impugned deduction mechanism pending resolution of the conflict between the competing statutory instruments and the parties’ existing contractual and statutory rights. Page 21 of 36

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64 It is the Claimant’s submission that orders sought are intended solely to preserve the status quo and did not amount to a final determination of the substantive dispute. 1st Respondent’s Submissions 65 The 1st Respondent submitted that the Claimant failed to satisfy the threshold for the grant of conservatory or injunctive orders to suspend the implementation of Legal Notice No. 1 of 2025 (The Kenya Union of Special and Professional Guards (Deduction of Union Dues) Order, 2024). It argued that the Legal Notice was lawfully issued by the Cabinet Secretary pursuant to Section 48(2) of the Labour Relations Act, 2007, after the 1st Respondent had satisfied the prescribed statutory requirements. It further submitted that the Legal Notice had already been implemented across the relevant representational units and, consequently, there was nothing capable of being stayed. 66 The 1st Respondent submitted that the Claimant has not met the principles governing the grant of interlocutory injunctions as established in Giella v Cassman Brown & Co. Ltd, namely the existence of a prima facie case with a probability of success, proof of irreparable injury incapable of compensation by damages, and where necessary, that the balance of convenience favoured the applicant. It Page 22 of 36

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argued that no prima facie case has been demonstrated because the impugned Legal Notice was issued in accordance with the law, while the Claimant neither produced evidence of prejudice nor established irreparable harm, particularly given that the Legal Notice has been operational since February 2025. Further, the balance of convenience favoured enforcement of statutory obligations and the protection of employees’ constitutional rights. 67 On jurisdiction, the 1st Respondent submitted that the impugned Legal Notice constituted an administrative action issued by the Cabinet Secretary under Section 48(2) of the Labour Relations Act and Article 47 of the Constitution, read together with the Fair Administrative Action Act. It argued that any challenge to such administrative action ought to have been pursued through judicial review proceedings, an appeal where provided by statute, or through the dispute resolution mechanisms under the Labour Relations Act, including the reporting of a trade dispute under Section 62. It contended that the Claimant neither invoked judicial review nor exhausted the statutory conciliation process under Sections 69 and 73 of the Labour Relations Act, but instead improperly sought to invalidate a statutory instrument through an ordinary claim and interlocutory application, thereby rendering the suit fatally defective. Page 23 of 36

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68 The 1st Respondent further submitted that the Claimant failed to invoke the statutory procedure for revocation of a ministerial order prescribed under Section 50(2) of the Labour Relations Act. It argued that the suit offends the doctrine of exhaustion, which requires parties to utilise statutory dispute resolution mechanisms before approaching the courts. In support of this proposition, reliance was placed on Communications Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others [2014] KESC 53 (KLR), where the Supreme Court affirmed that constitutional litigation should only be resorted to where statutory remedies are inadequate. It also relied on Secretary, County Public Service Board & another v Hulbhai Gedi Abdille [2017] eKLR, where the Court of Appeal emphasized that specialized statutory dispute resolution mechanisms should ordinarily be exhausted before invoking the Court’s jurisdiction. 69 Relying on Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, Mutanga Tea & Coffee Company Ltd v Shikara Limited & another [2015] eKLR, Environmental and Republic v Management National Authority [2011] KECA 412 (KLR)for the proposition that courts should defer to statutory dispute resolution mechanisms unless exceptional circumstances exist. The 1 st Respondent submitted that the Claimant was attempting Page 24 of 36

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to circumvent clear statutory procedures and that the suit ought to fail on that basis alone. 70 On the issue of non-joinder, the 1 st Respondent submitted that since the impugned Legal Notice was issued by the Cabinet Secretary responsible for Labour, any challenge to its validity or implementation could not be sustained without joining the decision-maker to the proceedings. It argued that failure to enjoin the Cabinet Secretary was fatal to the Claimant’s case. 71 The 1st Respondent further submitted that the suit was barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act. It argued that the Claimant was, in substance, seeking to reopen questions concerning the 1 st Respondent’s registration status and representational scope, matters which has already been conclusively determined in Nairobi ELRC Appeal No. 9 of 2018, Kisumu ELRC Appeal No. 5 of 2020, and Nairobi ELRC Petition No. E140 of 2024. Reliance was placed on Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, for the proposition that parties are barred from re-litigating matters previously determined by courts of competent jurisdiction. It was contended that the Claimant’s attempt to reopen settled issues rendered the suit legally untenable. Page 25 of 36

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72 The 1st Respondent also argued that the Claimant was indirectly challenging the decision of the Registrar of Trade Unions concerning the registration of the 1st Respondent without invoking the appellate mechanism provided under Section 30 of the Labour Relations Act. It submitted that no appeal has been lodged against the certificate of registration issued on 29 th August 2024 and that the Claimant could not mount a collateral attack on the registration through the present proceedings. 73 It was further submitted that the Claimant failed to disclose any identifiable trade dispute against the 1 st Respondent. According to 1st the Respondent, the documents relied upon merely evidenced referrals under Section 69 of the Labour Relations Act rather than concluded conciliation proceedings under Section 67, and therefore did adjudication. not It establish argued a that dispute the capable statutory of dispute resolution framework was intended for parties directly affected by the dispute and not rival trade unions seeking to impede lawful union activities. 74 The 1st Respondent additionally submitted that the suit was motivated by inter-union rivalry rather than genuine labour concerns. It argued that Article 41 of the Constitution guarantees every employee the freedom to join a trade union of his or her choice and that the implementation of Legal Notice No. 1 of 2025 enhanced, Page 26 of 36

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rather than infringed, that constitutional freedom by facilitating the lawful deduction and remittance of union dues once the statutory threshold has been satisfied. It therefore maintained that the Claimant’s application sought to undermine employees’ constitutional right to freedom of association. 75 In response to the submissions made by the 2nd Respondent, the 1st Respondent submitted that they were incompetent, misconceived and departed from the pleadings. It argued that the 2nd Respondent improperly introduced allegations concerning the 1 st Respondent’s internal governance and leadership, issues that neither formed part of the Claimant’s pleadings nor the Notice of Motion. According to the 1st Respondent, parties are bound by their pleadings and cannot introduce new causes of action through submissions. It therefore urged the Court to disregard the 2nd Respondent’s submissions in their entirety. 76 The 1st Respondent further disputed the 2 nd Respondent’s reliance on the letter dated 28th October 2025 allegedly authored by Kijala & Muganda Advocates, arguing that the employer has continued deducting and remitting union dues notwithstanding the letter, thereby demonstrating that it did not regard the letter as legally binding. It also denied the allegations concerning the involvement of one Jairus Shamala Khatere in the affairs of the union, Page 27 of 36

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contending that no such person has ever served as its Secretary General and that the allegations were false, irrelevant and intended to cast aspersions on its internal affairs. 77 The 1st Respondent submitted that its internal governance has no bearing on the statutory obligation imposed upon employers by Section 48 of the Labour Relations Act to deduct and remit union dues. It argued that the 2 nd Respondent’s deficiencies assertions were speculative, regarding legally governance irrelevant and demonstrated bias against the 1st Respondent. 78 On the issue of double deductions and disruption of existing recognition agreements, the 1st Respondent submitted that those issues had already been determined in Nairobi ELRC Cause No. E828 of 2025 in a ruling delivered on 18th December 2025. It argued that Sections 48 and 49 of the Labour Relations Act operate independently and do not create overlapping deductions, rendering the allegation of double deductions legally unsustainable. It similarly submitted that the alleged disruption of the Claimant’s recognition agreements had already been addressed in the earlier proceedings and could not be re-litigated. 79 The 1st Respondent further argued that the 2nd Respondent failed to demonstrate any procedural impropriety, Page 28 of 36

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illegality or breach of statutory provisions in the enactment or implementation of Legal Notice No. 1 of 2025. It contended that courts determine disputes on the basis of evidence and established legal violations rather than conjecture or subjective apprehension, and that the authorities relied upon by the 2nd Respondent were inapplicable. 2nd Respondent’s Submissions 80 The 2nd Respondent submitted that the Claimant met the threshold for the grant of conservatory orders. It relied on Board of Management of Uhuru Secondary School v City County Director of Education & 2 others [2015] eKLR, where the Court held that an applicant must establish a prima facie case with a likelihood of success and demonstrate the likelihood of suffering prejudice if the conservatory orders are not granted. It further relied on Kamau & 35 others v Commissioner General, Kenya Revenue Authority & another [2022] KEHC 10284 (KLR)for the proposition that, in determining an application for conservatory orders, the Court should also consider the nature of the dispute, the effect of the orders on the substantive proceedings, and the potential infringement of constitutional rights and fundamental freedoms. 81 The 2nd Respondent submitted that the Claimant established a strong prima facie case founded upon Page 29 of 36

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existing contractual and statutory obligations binding upon the parties. It maintained recognition agreement between itself and the Claimant, which predated the registration Claimant as of the the 1st sole Respondent, recognized the trade representing its union unionisable employees and was reinforced by a subsisting Collective Bargaining Agreement. 82 It further submitted that Legal Notice No. 7 of 2017 and Legal Notice No. 139 of 2021 imposed continuing statutory obligations upon the 2nd Respondent to deduct and remit union dues and agency fees in favour of the Claimant. According to the 2nd Respondent, the subsequent issuance of Legal Notice No. 1 of 2025, without reconciling the existing statutory framework, created a serious and triable conflict between competing legal obligations under the Labour Relations Act, 2007. 83 It was submitted that the 2 nd Respondent remained compliant with its statutory obligations and that the law could not require an employer to comply simultaneously with conflicting ministerial orders while exposing it to litigation from competing trade unions. 84 It is the 2nd Respondent’s submission that implementation of Legal Notice No. 1 of 2025 will occasion grave prejudice to employees by subjecting them to duplicate deductions from their wages. As an employer, it owes its employees a duty to ensure that deductions from wages are lawful and Page 30 of 36

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do not occasion undue financial hardship, as envisaged under Section 19 of the Employment Act. According to the 2nd Respondent, implementation of the impugned Legal Notice will require employees to continue contributing union dues or agency fees to the Claimant while simultaneously making deductions in favour of the 1 st Respondent, thereby significantly reducing employees’ net earnings. It relied on the payslip of one of its employees to illustrate the financial burden that the additional deductions would impose and urged the Court to protect employees from such prejudice. 85 The 2nd Respondent also submitted that the 1 st Respondent suffers from serious governance deficiencies which renders it unsafe to receive compulsory union deductions. It relied on a letter dated 28 th October 2025 authored by Kijala & Muganda Advocates on behalf of members questioned of the the 1st legality Respondent, of the which union's allegedly governance structures. The letter demonstrates that the National Executive Council and Trustees contemplated under the 1st Respondent’s Constitution was not been properly constituted, thus, the union lacked duly authorized organs capable of lawfully managing its affairs or safeguarding members’ funds. 86 The 2nd Respondent further submitted that the same correspondence alleged that the affairs of the 1 st Page 31 of 36

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Respondent were being influenced by one Jairus Khatere, who had previously been removed from office following his conviction for the offence of theft by servant in Republic v Jairus Katere Shamalla, Criminal Case No. 1410 of 2018. It argued that the annexed judgment, which concerned the theft of compensation monies intended for an employee, reinforced concerns regarding the prudent management of funds that would be remitted pursuant to the impugned Legal Notice. 87 On the balance of convenience, the 2nd Respondent submitted that it overwhelmingly favoured the grant of conservatory orders. It argued that failure to suspend Legal Notice No. 1 of 2025 would expose employees to duplicated deductions and financial hardship, whereas the 1st Respondent implementation determination would were of the suffer merely no prejudice suspended substantive dispute. if pending The 2 nd Respondent emphasized that it did not challenge the 1 st Respondent’s registration as constitutional right members of its a trade to union, the freedom of association under Article 41 of the Constitution, or the right of employees to join a trade union of their choice. Rather, it supported only the temporary suspension of Legal Notice No. 1 of 2025 pending resolution of the conflict between the competing statutory and contractual obligations. Page 32 of 36

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88 In response to the 1st Respondent’s submissions, the 2 nd Respondent argued that the objection to jurisdiction was misconceived. It submitted that the Employment and Labour Relations Court derives its jurisdiction from Article 162(2) of the Constitution and the Employment and Labour Relations Court Act, and possesses exclusive jurisdiction to determine labour relations disputes, including disputes concerning the interpretation and effect of statutory instruments issued under the Labour Relations Act. It maintained that the dispute concerned the compatibility of Legal Notice No. 1 of 2025 with existing recognition agreements, collective bargaining agreements and earlier legal notices, all of which properly fell within the Court’s jurisdiction. 89 The 2nd Respondent further submitted that the plea of res judicata is misplaced since the present proceedings arose from the enactment of Legal Notice No. 1 of 2025, which introduced a new conflict with pre-existing legal obligations that had not previously been litigated. 90 Regarding the objection on non-joinder of the Cabinet Secretary for Labour, the 2nd Respondent submitted that such omission was not fatal at the interlocutory stage. The Court possesses wide powers to join parties where necessary and the instant dispute concerned implementation of the impugned Legal Notice by the Page 33 of 36

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employer Respondents, all of whom are already before the Court. 91 The 2nd Respondent also submitted that although statutory instruments ordinarily enjoy a presumption of legality and constitutionality, such presumption does not shield them from judicial scrutiny where they create direct and irreconcilable conflicts with existing statutory obligations issued under the same enabling legislation. It is the Court’s obligation to determine whether the competing Legal Notices could lawfully coexist and, pending that determination, conservatory orders were necessary to preserve the status quo. 92 I have examined all the averments and submissions of the parties herein. The applicant seeks orders to stay implementation of a gazette notice allowing recognition of the 1st respondent citing various reasons. 93 The 1st respondent opposed this application averring that the issues of its registration and demarcation have already been determined in previous causes and applications and is therefore res judicata and that there is no statutory provision breached by the Cabinet Secretary nor has it been established that there is any real dispute between the parties. 94 The 2nd respondent supported the application indicating that implementing the new gazette notice interferes with Page 34 of 36

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the already existing check off forms and that he has received a letter from a counsel representing some 2000 union members seeking stay of deduction of union dues to the 1st respondent. 95 The 23rd respondent opposed the application indicating they don’t have any recognition agreement with the claimant and/or the 1st respondent and therefore the claimant has no locus standi to prosecute any claims against them. 96 From the averments before this court, it is apparent that the applicant seeks orders staying implementation of legal notice 1 of 2025. The legal notice was issued after due processes and consideration of various legal parameters. It is also true that the legal notice was issued after consideration of the rights of all participate workers to join and on the affairs of any union as provided for under article 41 of the constitution. 97 For this court to arrive at this stage and decide to cancel the legal notices implementation would hamper rights of the parties without considering the full evidence that may be necessary in the entire cause. 98 I find it premature to allow the application at this point as it would determine the entire claim. I decline to grant orders sought and order that parties proceed with the main claim if they so wish. Costs in the cause. Page 35 of 36

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Dated, Signed and Delivered virtually at Nairobi this 29th Day of July 2026. HELLEN WASILWA JUDGE Page 36 of 36

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