REPUBLIC OF KENYA IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA AT KISUMU CAUSE NO. E018 OF 2026 KENYA HOTELS AND ALLIED WORKERS UNION.............CLAIMANT VERSUS NYANZA CLUB..........................................................……… RESPONDENT RULING 1. By an application dated 15th July 2026, the Respondent seeks to have the suit struck out with costs. In support of the application, the Respondent avers that, being a society registered under the Societies Act, it lacks legal personality and, consequently, cannot sue or be sued in its own name. It Page 1 of 5
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further contends that, to the extent that the present claim seeks to enforce decrees issued in Kisumu ELRC Cause Nos. 118 of 2017 and E004 of 2021, the suit contravenes section 34 of the Civil Procedure Act. 2. The Claimant opposed the application through a replying affidavit sworn by Mr. Erick Ngame, its Nyanza Branch Secretary. It maintains that the Respondent has been properly sued in its registered capacity as Nyanza Club and points out that the Respondent has previously participated in proceedings in the same capacity, including Kisumu ELRC Cause Nos. 118 of 2017 and E004 of 2021. 3. On the contention that the present suit seeks to execute the decrees issued in the aforementioned causes, the Claimant disputes that assertion. It explains that Cause No. 118 of 2017 concerned house allowance and wage increments arising from a deadlock in collective bargaining, while Cause No. E004 of 2021 concerned salary and house allowance arrears for the period 2018 to 2019. In contrast, this suit arises from the Respondent’s alleged refusal to sign the collective bargaining agreement following the award in Page 2 of 5
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Cause No. 118 of 2017, thereby preventing its registration and enforcement. The Claimant further asserts that this suit concerns salary and house allowance arrears for the period 2021 to 2025. It therefore urges the Court to dismiss the application, contending that it is an attempt to circumvent its members’ rights to fair labour practices and collective bargaining. 4. The application was canvassed by way of written submissions. However, only the Claimant complied with the Court’s directions on the filing of submissions. Claimant’s Submissions 5. The Claimant submits that, contrary to the Respondent’s assertion, Nyanza Club is a corporate body incorporated on 23rd August 1940 under the Land Ordinance, 1923, and is therefore capable of suing and being sued. It further submits that the Respondent falls within the definition of an employer under section 2 of the Employment Act, which includes a corporation or company that has entered into a contract of service to employ an individual. Page 3 of 5
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6. The Claimant further submits that the present suit is properly before the Court on account of the Respondent’s alleged failure to implement the wage increments ordered in Cause No. 118 of 2017, its continued underpayment of the Claimant’s members, and its refusal to sign the CBA. It therefore urges the Court to dismiss the application with costs. Disposition 7. The Respondent asserts it is not capable of suing and being sued. It has however been a feature on the cause lists for the Kisumu ELRC since the Court begun sitting in Kisumu. It has been subject of decisions of this Court and cannot turn and say it is incapable of being sued. Nyanza Club is a corporate body incorporated on 23rd August 1940 under the Land Ordinance, 1923, and is therefore capable of suing and being sued. The motion by the Respondent is dismissed with costs to the Claimant. Directions on disposal of the suit to follow this Ruling. It is so ordered. Page 4 of 5
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Dated and delivered at Kisii this 29th day of September 2026 Nzioki wa Makau, MCIArb. JUDGE Page 5 of 5
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