John Bosco Matheka v Kenya Airways PLC & Kenya Airline Pilots Association (Interested Party)

JUDGMENT 1. The Petitioner, in his Petition avers that he is an E190 Fleet Captain with nearly three decades of aviation experience and has served the Respondent approximately 16 continuously years. That and his without terms and blemish for conditions of employment are governed by his contract of employment, the Employment Act, ZAA7, the Kenya Civil Aviation Regulations, and the Collective Bargaining Agreement 2024-2026 ("the CBA') between the Respondent and KALPA. That the CBA is a Company instrument and applies to all pilots regardless of their membership status with KALPA, where Schedule VI of the CBA governs Seniority, Promotions and Training. It was averred that Section C thereof provides that once a pilot's seniority list position has been established, he cannot be by-passed provided he is proficient and accepts promotion to which his seniority entitles him. 2. That by Fleet Notice dated 5th November 2025 (Ref: AD/15/2025), the Director Flight Operations as Chair of the S,P&T Committee opened bid positions for the quarter November 2025 to February 2026. Consequently, the Petitioner submitted a valid bid on 8 th November 2025, which was acknowledged on 7 th February 2026 by Captain Abubakar Bajaber, Head of Training. That by email of 16 th March 2026, Captain Paul Njoroge, the Director Flight Operations and Chair of the S,P&T Committee, informed the Petitioner that his seniority list review and bidding rights would be deferred pending resolution of the pending agency fees matter. The Petitioner challenged the same vide his letter dated 22nd March 2026, which drew attention to the specific CBA provisions, to the Board's standing directive of November 2024, and to the legal character of 2 | Page

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the Respondent's conduct. That the same did not elicit any substantive written response within the specified fourteen-day period. 3. Subsequently, by Fleet Notice dated 16th April 2026 (References AD/03/2026 and AD/02/2026), the Respondent announced the successful candidates from the November 2025 bid cycle and opened a further bid window closing on 30 th April 2026. Among the successful bidders for B737 Captain positions were Captain Fiona Ngumi and Captain Mbeki Ogwang both of whom, as per the Kenya Airways Pilot Seniority list dated 31 st May 2025, are junior to the Petitioner. That the Petitioner has been bypassed in direct breach of Schedule VI, Section C of the CBA. That the Respondent's conduct proceeds contrary to a standing directive of the Respondent's Board of Directors taken at its November 2024 meeting that the Petitioner be issued a standalone employment contract and not suffer prejudice by reason of the agency fees question. That directive has not been rescinded. As such, he seeks judgment against the Respondent for the following reliefs: (a) A declaration that the Collective Bargaining Agreement 20242026 applies to all pilots in the service of the Respondent, including the Petitioner, and is not conditional upon union membership. (b) A declaration that the Petitioner's rights to seniority list review, bidding, and consideration for promotion flow directly from Schedule VI of the CBA and from the Employment Act, 2007, and are not capable of being lawfully conditioned upon the resolution of any collateral financial matter. 3 | Page

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(c) A declaration that the Respondent's conditioning of the Petitioner's seniority list review and bidding rights on the resolution of the agency fees matter, the suppression of his bid of 8th November 2025, and the subsequent promotion of Captain Fiona Ngumi and Captain Mbeki Ogwang (who are junior to the Petitioner) to B737 Captain positions are ultra vires Schedule VI of the CBA, in breach of the Petitioner's contractual employment rights, and contrary to the standing directive of the Respondent's own Board of Directors of November 2024, (d) A declaration that the Respondent's conduct infringes the Petitioner's rights under Articles 27 ,28, 41, 47 and 48 of the Constitution of Kenya, 2010. (e) A declaration that the continued conduct of the Respondent, if not restrained, amounts to constructive dismissal within the meaning of the Employment Act, 2007. (f) An order of permanent injunction restraining the Respondent, whether by itself, its agents, servants, employees or any person acting under its authority, from conditioning, suspending, deferring or in any manner linking the Petitioner's seniority list review, bidding rights, or promotion consideration upon the resolution of the agency fees matter or any other collateral financial matter. (g) A. order of mandamus or equivalent injunctive order compelling the Respondent, through its S,P&T Committee, to: 4 | Page

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i. restore the Petitioner's name to the Pilot Seniority list in the position corresponding to his continuous service with the Respondent; ii. maintain the Seniority list and Promotions List up to date at all times in conformity with Schedule VI of the CBA; iii. consider the Petitioner's bid of 8th November 2O25 and any further bid submitted under the April 2026 Fleet Notice on their own merits; and iv. take such further steps as may be necessary to remedy the bypass effected by the Fleet Notice of 16th April 2026. h) General damages for the Respondent's breach of contract and violation of the Petitioner's constitutional and statutory rights, to be assessed by this Honourable Court. i) Costs of this Petition and interest thereon at court rates j) Such further or other relief as this Honourable Court may deem just and appropriate in the circumstances 4. The Respondent responded to the Petition vide its Replying Affidavit sworn by Captain Paul Njoroge, its Director Flight Operations, and Chair of the Seniority, Promotions and Training Committee, on 19th May 2026. The deponent outlined the promotions process as governed by the policy (KALPA). He stated that as per the CBA’s preamble, the CBA does not limit its application to only members of KALPA. He stated that a pilot 5 | Page

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derives his seniority rights and promotion entitlements from his status as an employee and not the union membership. He stated that section B of the policy provides for announcement of open positions by the Chairperson of the S&Q Committee, every three months, on the 1st day of February, May, August and November. That pilots are to submit their bids electronically by the 15 th of the said months, and the Committee is expected to consider all bids and respond within 14 days of the deadline. 5. He stated that section C of the policy provides that once a pilot’s seniority is established, he cannot be bypassed as long as he is proficient and accepts any promotion his seniority entitles. That the S,P& T Committee is required to maintain an updated seniority list at all time. That section D further mandates the Committee to keep an updated list of pilots next in line for promotion, posting or appointment in conformity with the promotions and seniority list. 6. He deponed that the committee constituted under section D, with a membership that includes a chairperson appointed by the Respondent, two captains representing the Respondent, three pilots representing KALPA, one nominee of the Respondent and a secretary. That for a quorum to be established, five members must be present, where the Respondent’s and KALPA’s representation is two each. He added that the decisions are made jointly and thus, the Respondent is not in a position to act unilaterally without the union’s representation. 7. He stated that the Respondent, by fleet notice dated 5 th November 2025, advertised open bids for the quarter November 2025February 2026, including Captain appointments on B777, B787, 6 | Page

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B737 A=and Embraer fleets, with deadline of 20 th November 2025. That the Petitioner submitted a bid dated 8 th November 2025 within the prescribed deadline indicating his priority bid as a Captain position on the B737, with further B777 and B787. He added that the Head of training responded to the Petitioner on 7 th February 2026 acknowledging the Petitioner’s position, noting that his bids would be considered and communicated when the opportunity arises. He stated that the Petitioner’s seniority was not in dispute as he is an established pilot in the Respondent’s service. 8. He stated that the dispute was as a result of the Petitioner’s expulsion from the union due to the issue on deduction of agency fees, that formed subject of Nairobi ELRC Petition No. E156 of 2025, John Bosco Matheka v Kenya Airways PLC & the Kenya Airline Pilots Association; that was decided in KALPA’s favour. That following the decision, the Respondent commenced deduction of the agency fees remitting them to KALPA, in accordance with the Agency Fees Order. He added that the Petitioner is fully paid up, but at the time of bidding, the union representatives insisted that he was no longer on the seniority list as he was not a KALPA member, objecting his bid on that ground. He stated that on basis of the same, he informed the Petitioner that the issue on agency fees needed to be resolved before his bidding rights could be discussed by the Committee. 9. He deponed that upon the institution of these proceedings, he convened a committee meeting to discuss the issue, noting the provisions of the Preamble of the CBA. That the Petitioner could not be bypassed, more so since the issue on fees had been resolved, and that he was entitled to full benefits of the CBA. He stated that 7 | Page

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the union representatives, in the said meeting indicated that the Petitioner was not on the list, recommending that he appears before the KALPA Executive Council to seek reinstatement to the seniority list before any promotion could be considered. That they further argued that the promotion under section D had to be effected jointly by the full committee and that its representatives could only discuss matters pertaining to KALPA members. He stated that he was aware that the only benefits objected to by the union was his promotion. 10. He maintained that the Respondent’s position is that the Petitioner was entitled to the promotion in accordance with his seniority. He stated that the Respondent had not refused to promote him, but the impasse was within the Committee. He stated that the Respondent could not act unilaterally within the committee without risking adverse consequences for its broader operations and industrial relations. The deponent did not dispute that the two pilots junior to the Petitioner were awarded B737 Captain positions, from the November 2025 cycle. He deponed that the outcome was difficult to reconcile with the protections accorded to the Petitioner under Schedule VI, section C of the CBA, inviting the Court to address in while making a determination. 11. The affiant further deponed that while the Respondent did not oppose the substantive relief sought, its concern waswith regard to the practicality of the conservatory orders as framed. He added that the promotions process involves multiple pilots whose legitimate expectation and bidding rights are also engaged. That an order that disrupts the wider process without accounting for those interests could give rise to further complications that would be 8 | Page

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difficult to reverse. He urged the Court to give directions that would restore the Petitioner to the position he would have occupied had the impasse not arisen, with minimum disruptions on the ongoing promotion process. 12. In his further Affidavit in response to the Interested Party's Replying Affidavit sworn by Captain Dzochera Warrakah the Petitioner deponed stated that he is a Fleet Captain on the Embraer E190 aircraft in the continuous employment of the Respondent. He stated that his seniority, bidding and promotion rights were suppressed not because he lacked proficiency, qualification, service, licence or merit, but because KALPA purported to remove him from the seniority list by reason of his non-membership to the union. He stated that by the Interested Party’s own admission that the Committee adopted a procedure of removing a pilot from the seniority list where a pilot voluntarily leaves KALPA or is expelled as a member of KALPA. That it was clear that the impugned decision was founded on union membership status, and not on any criterion found in Schedule VI of the CBA. 13. The affiant deponed that the Interested Party admitted that a pilot joined the seniority list upon attaining the necessary qualifications and completing probation, but it did not show that he failed to attain qualifications, failed probation, lost his licence, became medically unfit, or that his employment was terminated. He contended stated that the the Interested Party's case therefore collapses into a single proposition: that a serving pilot may be removed from the seniority list because KALPA expelled him. He termed the same as discriminative and urged that it to be declared 9 | Page

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illegal, unlawful and unconstitutional as it can be used to unlawfully kick out member pilots thereby hampering their career progression. 14. He reiterated that the CBA applied to employees and not members. He stated that KALPA lacked any lawful authority, contractual power or constitutional entitlement to make membership of a private trade union a condition precedent to his continued recognition on the Kenya Airways Pilot Seniority List; yet the CBA 2024-2026 was clear on its face. He stated that Clause 12 of the CBA provides that the Seniority, Promotions and Training Policy for employees shall be in accordance with Schedule VI attached to and forming part of the agreement. He urged that the Interested Party could not, by affidavit, amend the CBA to insert a membership condition which the parties did not write into Schedule VI. He stated that KALPA's affidavit did not identify any clause of the CBA stating that expulsion from KALPA removed a pilot from the seniority list, that only KALPA members may bid, be promoted, or that an expelled KALPA member forfeits accumulated seniority. He deponed that in the absence of such provisions, KALPA's alleged 'procedure' was unlawful, ultra vires, discriminatory and void. 15. The affiant denied that the Interested Party possessed any contractual, statutory or constitutional authority to regulate, amend, suspend or extinguish rights arising under his contract of employment with the Respondent. He further deposed that there was no employment contract between him and the Interested Party nor any statutory provision conferring upon it the powers of an employer in relation to his employment. He urged that the legal incidents of an employment relationship, including recruitment, appointment, deployment, supervision, appraisal, promotion, 10 | P a g e

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remuneration, discipline and termination, remain vested exclusively in the employer unless expressly transferred by law. He deposed that the doctrine of privity of contract states that obligations and rights arising under his contract of employment were enforceable as between the contracting parties, and could be altered by a stranger to that contract unless expressly authorized by law. 16. The affiant that seniority was not a union privilege but an employment status arising from his employment the Respondent, his date of entry, continuous service, qualifications, aircraft type, license status and the CBA framework. He reiterated that there was no existing lawful basis for deleting or suppressing his seniority. He countered KALPA's assertion that movement on the seniority list did not affect remuneration, stating that fleet movement, command progression and aircraft conversion directly affect career trajectory, productivity opportunities, operational utilization, future earning prospects, pension value and professional standing. 17. The affiant added that although the immediate basic salary was not altered on the date of list movement, denial of fleet progression and command opportunity was a substantial employment prejudice and an unfair labour practice. He reiterated that the Labour Relations Act recognizes agency fees for non-members covered by a collective agreement, KALPA's own reliance on agency fees defeated its case. He emphasized that Section 49 provided for deduction of agency fees from unionisable employees who covered by collective agreements who are not union members, because such non-members benefited from the collective agreement. 11 | P a g e

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18. He averred that the position taken by the Interested Party was contrary to freedom of association. He urged that a trade union could not convert the constitutional freedom of association into compelled association by subjecting career progression upon union membership. He deposed that Articles 36 and 41 of the Constitution protected his right not to be coerced into association as a condition of equal employment treatment. That the decisions in Sonia Kwamboka Rasugu v Sandalwood Hotel & Resort Ltd, Isaac Ngugi v Nairobi Hospital, and Rose Wangui Mambo v Limuru Country Club supported the horizontal enforcement of constitutional rights against private entities. He maintained that KALPA cannot expel him from membership and then use that expulsion to impose collateral employment punishment through the SPT Committee. 19. The affiantdeposed that the SPT Committee under Schedule VI was not a KALPA disciplinary organ and the CBA-created mechanism for the administration of seniority, promotion and training, and thus, any decision by that Committee ought to be tethered to the CBA. He denied the plea of res judicata or abuse of process stating that it was misconceived because the Petition arose from a distinct factual matrix, namely the November 2025 bidding cycle, the communication of 16th March 2026, the fleet notice of 16 th April 2026, and the current denial of his seniority and promotion rights. He added that none of these events existed at the time of, or could have been determined in, earlier proceedings relied upon by the Interested Party. He further denied the Petition was a disguised appeal over prior membership disputes. He further denied that the matter was moot, stating that the prejudice continues every day that his name remained excluded, suppressed or treated as 12 | P a g e

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ineffective on the seniority list. He urged that a completed bypass does not extinguish the cause of action, rather, but it crystallizes it. 20. The affiant deposed that unless this Honourable Court granted the reliefs sought, the Interested Party's unlawful interference with his seniority would inevitably exclude him from the August 2026 bidding exercise similar to the August 2025, November 2025 and April 2026 bid cycles. He stated that every future promotion exercise undertaken while he remained unlawfully excluded from the seniority list constituted a fresh and continuing infringement of his rights under Articles 27, 36, 41, 47 and 50 of the Constitution. He termed the injury as continuous and recurring, and not merely historical. He averred that the prejudice could not be adequately remedied by an award of damages after retirement, because lost seniority, lost command opportunities and lost years of career progression are incapable of complete restoration. Submissions 21. The Petitioner submitted that the Respondent's defence was not a denial of liability, but an attempted displacement of liability. Counsel urged the courtto find that the Respondent unlawfully surrendered its employer obligations to a stranger to the employment contract. Reliance was placed on Rose Wangui Mambo & 2 Others v Limuru Country Club & 17 Others [2014] eKLR, to submit that the High Court held that a private members' club was bound by Articles 27 and 47 where its decisions carried serious consequences for individuals. Further reliance was placed on Isaac Ngugi v Nairobi Hospital & 3 Others [2013] eKLR, where the Court affirmed that constitutional rights may be enforced against private bodies. 13 | P a g e

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22. Counsel submitted that Article 27 of the Constitution of Kenya guarantees equality before the law and equal protection and equal benefit of the law, which the Petitioner was denied. It was further submitted further administrative that action Article that is 47 guaranteed expeditious, the efficient, right to lawful, reasonable and procedurally fair, as elaborated by Section 4 of the Fair Administrative Action Act, 2015. Reliance was placed on Judicial Service Commission v Mbalu Mutava & Another [2015] eKLR. Counsel submitted that Article 258 permited any person to institute proceedings claiming that the Constitution has been contravened or is threatened with contravention. Further support was levied from Section 5 of the Employment Act, 2007. Section 87, where an employer or employee neglects or refuses to fulfil a contract of service, or where any dispute arises concerning the rights or liabilities of either party. 23. As to who the employer is, counsel submitted that the applicable tests were control test, integration test, the economic reality mutuality of obligation test and the contractual test. Reliance was placed on Christine Adot Lopeyio v Wycliffe Mwathi Pere [2013] eKLR, where the Employment and Labour Relations Court applied the elements of control, remuneration, integration and mutuality in identifying the employment relationship. Further support was gathered from Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 and Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173, which remain persuasive to this Court. 14 | P a g e

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24. Counsel submitted that KALPA's conduct, as admitted by the Respondent and the Interested Party's affidavits, went beyond lawful collective representation. It was submitted that the employer's duty of due care, its constitutional obligations, its statutory obligations and its contractual obligations were personal to the employer and non-delegable to KALPA or to any Committee. It was argued that the Respondent's explanation was therefore an admission of abdication. Counsel submitted that the employment contract and the CBA created a structured promotion mechanism based on seniority, vacancy, qualification and fair consideration. Counsel submitted on the prevention principle, stated in Mackay v Dick (1881) 6 App Cas 251. It was submitted further that the formulation in Malik v Bank of Credit and Commerce International SA [1997] UKHL 23; [1998] AC 20 has been repeatedly applied by this Court. It was urged that a party may not rely on its own wrong, nor profit from its own breach. It was added that the Respondent's conduct also breached the Petitioner's legitimate expectation. Reliance was placed on Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR. 25. As whether the Petition is res judicata and on abuse of process by reference to earlier litigation on the Petitioner's union membership and agency fees, it was argued that the contention was misconceived. Reliance was placed on John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] KESC and Kenya Commercial Bank Ltd v Muiri Coffee Estate Ltd & Another [2016] eKLR on the rationale and limits of the doctrine. 15 | P a g e

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26. Counsel urged the Court was to find that an employer cannot evade constitutional, statutory and contractual liability by asserting that a trade union or a joint committee objected to the performance of the employer's own obligations. The Court was further urged to allow the Petition with costs. 27. The Respondent submitted on the following issues: whether the Respondent had the power to determine the Petitioner's promotion bid unilaterally, or whether it was confined to the procedure prescribed under the S, P&T Committee; whether applying the criteria properly applicable under the CBA, the Petitioner was entitled to promotion; and whether the reliefs sought were justified. 28. On the first issue, counsel submitted that the CBA governed promotions among pilots, while Schedule VI established the SP&T Committee, whose responsibility wasmaintaining the Seniority list and identifying pilots next in line. It was submitted that neither the Respondent nor Interested Party could determine the Committee's position unilaterally without the other’s participation. 29. It was submitted that the CBA became binding when it was registered on 29th January 2025, pursuant to Section 60 of the Labour Relations Act, and the Respondent had no authority to unilaterally disregard its terms. In support of the argument, reliance was placed on Kenya Chemical Workers Union v Vector Pest Control and Supplies Limited [2025] KEELRC 947 (KLR) in submitting that the assertion that the Respondent ought to have proceeded unilaterally was misconceived. Counsel 16 | P a g e

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urged the Court to find that no dereliction of duty arose from faithfully applying the terms of Schedule VI. 30. On the second issue, the Respondent did not deny that the Petitioner's bid was not considered. Instead, the Court was urged to consider that its hands were tied because the Interested Party's representatives in the S,P&T Committee maintained that the Petitioner's non-membership disqualified him from consideration. Counsel added that had the bid been considered as per the CBA criteria, the Petitioner’s proficiency and his established position on the Seniority List, he would have been entitled to promotion, as both conditions were met when he submitted his bid-on 8 th November 2025. 31. Counsel submitted that the position taken by the Interested Party on the Petitioner's non-membership was unlawfully used to remove him from the Seniority list and deny him consideration for a benefit arising from his employment. It was further submitted that nothing in the CBA made membership of the Interested Party a condition for retention on the Seniority list or for consideration for promotion, and neither did provision of Schedule VI permit the Interested Party to introduce such a condition through an internal procedure. 32. Reliance was placed on Section 59(1)(b), (2) and (3) of the Labour Relations Act, 2007 on the binding nature of collective agreements and incorporation of their terms into the contract of employment of every employee covered. Further, reliance was placed on East Africa Portland Cement Co. Ltd v Kenya Chemical & Allied Workers Union [2017] KECA 215 (KLR) and George Kamakia Mwangi v Diamond Trust Bank (K) Limited [2025] KEELRC 17 | P a g e

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2876 (KLR). Counsel argued that the Interested Party's reliance on agency fees exposed the inconsistency in its position. Counsel submitted urged that if the Petitioner fell within the scope of the CBA for purposes of agency fees was a non-member employee covered by the agreement, it could not be said that his nonmembership placed him outside the rights and benefits arising under the same agreement. Reliance was placed on Musa Mohamed Kaleve & 2 others v East African Portland and Cement Limited [2020] KEELRC 1606 (KLR). 33. Counsel argued that the Interested Party's position could not withstand scrutiny as laid bare the assertion that the S,P&T Committee had "adopted a procedure" of removing pilots from the Seniority List, upon expulsion from the union. It was urged that there were no minutes, resolution, or record evidencing the adoption of such a procedure or the Petitioner's removal pursuant to it had been placed before the Court. Counsel submitted that according to Section 108 of the Evidence Act, it was incumbent upon the Interested Party to substantiate the existence of the procedure. That at the meeting of 5 th May 2026, when the Respondent's representative maintained that nothing in the CBA permitted the Petitioner to be bypassed, the Interested Party did not identify any provision in Schedule VI supporting its position. However, it maintained that the Petitioner was no longer on the Seniority list because he was no longer a member of KALPA, and recommended that he seek reinstatement before his promotion could be considered. 34. It was submitted that the decision made the Petitioner's access to an employment right conditional upon his reinstatement as a 18 | P a g e

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member of the very union that had expelled him. It was further submitted that the Interested Party's own affidavit acknowledged that reinstatement would not necessarily restore the Petitioner to his previous position on the Seniority List. That his membership status would determine not merely his relationship with the Union but his position within the Respondent's employment structure and his prospects for promotion. It was added that this consequence brought the matter beyond contractual interpretation. It was submitted that Article 41(1) of the Constitution guaranteed every person the right to fair labour practices, and Section 5(2)(c)(i) of the Labour Relations Act provided that no person shall dismiss or in any other way prejudice an employee because of past, present, or anticipated trade union membership. 35. Counsel submitted that the Petitioner's non-membership was not merely incidental but was expressly relied upon as the reason he was no longer on the seniority list and why his promotion could not be considered. It was submitted that the prejudice complained of flowed directly from the Petitioner’s status as a non-union member. It was urged that an employee cannot lawfully be prejudiced in his employment because of his relationship with a trade union, particularly where the right from which he is excluded arises under a CBA that covers him irrespective of union membership. 36. Counsel submitted that while the Interested Party was entitled to represent unionisable employees in collective bargaining and to collect agency fees from non-members, it has no corresponding power to determine that an employee covered by the CBA could loose his seniority or becomes ineligible for promotion because he was not a member of the Union. Counsel urged that the alleged 19 | P a g e

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procedure had not been proved and, even if it existed, could not override the CBA Section 59 of the Labour Relations Act, or the constitutional and statutory protection against prejudicing an employee on account of trade union membership status. It was submitted that the question whether the Petitioner's removal from the seniority list, loss of accrued seniority, exclusion from consideration for promotion, or resulting prejudice was consistent with Article 41 was ultimately a matter for the Court's determination. 37. On the third issue, as for the declarations sought at paragraphs (a) to (d), counsel left their grant to the discretion of the Court. As for the declaration at paragraph (e), it was submitted that the circumstances pleaded did not disclose constructive dismissal. Reliance was placed on Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR), where the Court of Appeal set out the principles governing constructive dismissal. Counsel urged that the Petitioner had not resigned, has sought restoration to the seniority list while remaining in employment, and his role, and remuneration remained intact. Counsel therefore submitted that the declaration sought at paragraph (e) was not merited. 38. As for paragraph (f), it was submitted that the evidence did not substantiate any such apprehension against the Respondent, which had always maintained that the Petitioner could not lawfully be bypassed on the basis advanced by the Interested Party, including in its letter of 22nd March 2026, at the S, P&T Committee meeting of 5th May 2026, and in the proceedings. It was urged that a 20 | P a g e

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permanent injunction against the Respondent would be of limited practical consequence. 39. As for paragraph (g), reliance was placed on Kenya National Examination Council v Republic; Njoroge & 9 others (Ex parte) [1997] KECA 58 (KLR), in support of the submission that according to the evidence, the Respondent had not failed or refused to perform any duty within its sole control. 40. On general damages under paragraph (h), it was submitted that the same required evidential support. It was further submitted that the Petition did not exhibit the principles outlined in Wamwere & 5 others v Attorney General [2023] KESC 3 (KLR). That the dispute did not disclose the broader societal dimension that could justify an award of damages as espoused in the Wamwere case. 41. As for deterrence, it was submitted that the Respondent was a private party that had consistently indicated its willingness to abide by the terms of the CBA, and the circumstances arose within a jointly administered Committee. Counsel therefore urged the Court to decline an award of constitutional damages. 42. The Court was further urged to grant such relief as it considered just, proportionate, and necessary to uphold the rule of law and give effect to the constitutional principles of fairness, due process, and justice for all parties. 21 | P a g e

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43. On its part, the Interested Party submitted on whether the Petitioner was lawfully removed from the seniority list and whether his bids were considered, such that he was lawfully bypassed. 44. The Interested Party’s submissions largely reiterated the contents of its Affidavit, and I do not see the use to reproduce the same herein. 45. In support of its submission, reliance was placed on Telkom Kenya Limited v Communication Workers Union (Civil Appeal 96 of 2019) [2025] KECA 449 (KLR). 46. On discrimination, reliance was placed on EG & 7 others v Attorney General; DKM & 9 others (Interested Parties); Katiba Institute & another (Amicus Curiae) Petition 150 & 234 of 2016, in submitting that differentiation is permissible if it does not constitute unfair discrimination. Counsel added that law or conduct which promoted differentiation had to have a legitimate purpose and bear a rational connection between the differentiation and the purpose. 47. On burden of proof in a constitutional petition, reliance was placed on Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others [2014] eKLR, which postulated that a party invoking that Article had to show the rights said to be infringed as well as the basis of the grievance. 48. The union submitted that the Petitioner had not set out with a reasonable degree of precision that which he complained, the provisions said to be infringed, and the manner in which they were 22 | P a g e

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alleged to be infringed. Counsel added that the Petition lacked a prima facie case and arguable issues worthy of being entertained by the Court. 49. It was further submitted that the Committee, agreed on matters relating to the seniority list and thus, the Petitioner's assertions that the Interested Party was interfering with his employment by claiming control over his employment relationship were misplaced and baseless. Counsel added that the Interested Party did not exercise substantial power over access to workplace benefits, promotion, seniority, and career progression as alleged by the Petitioner. 50. Counsel urged that the Petitioner was relitigating the issue of deduction of agency fees by claiming it was unconstitutional because he was not a member. It was argued that the Petitioner's benefits under the CBA extended beyond the issue of the Seniority List, and the Petitioner enjoyed other benefits on his terms and conditions of service. Reliance was placed on Kenya Hotels and Allied Workers Union v Attorney General & 6 others [2015] KEELRC 278 (KLR). 51. Counsel further submitted that payment of agency fee did not interfere with or limit the right to freedom of association, because the fee was intended to meet the cost of negotiating the CBA and not to finance the union's other activities. Counsel urged that the Petitioner could not claim rights under the seniority list which were bargained on behalf of the members. 23 | P a g e

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52. In submitting that the Petitioner lacked a legitimate expectation to be transferred to a new fleet, reliance was placed on Communication Commission of Kenya & 5 others v Royal Media Services Ltd & 5 others (2014) eKLR. Counsel argued that the Petitioner was not given an express, clear, and unambiguous promise that his bid would be allowed by the Committee on the basis of seniority only. Counsel added that given the Petitioner's ongoing disputes with the Respondent and Interested Party and his non-membership status, his expectation to be transferred to another fleet was unreasonable and contrary to the CBA. 53. On res judicata and sub judice, it was submitted that the Petition raised issues intertwined with previously decided cases and pending cases. The Court was urged to refrain from rehearing matters already decided upon or pending pursuant to Sections 6 and 7 of the Civil Procedure Act. 54. In conclusion, Counsel submitted that the Petitioner was lawfully removed from the seniority list, and that his bids were considered but found unsuitable, hence he was lawfully bypassed. It was reiterated that the unsuitability of his bids was based on his agency fees dispute with the Respondent and Interested Party, which reason was duly communicated to him. It was submitted that the decision was collectively made by the Respondent and Interested Party through the joint Committee in accordance with the CBA, Recognition Agreement, Employment Act, Labour Relations Act, and Constitution. Counsel urged to deny the Petitioner's prayers in totality. 24 | P a g e

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Analysis and determination 55. The issues for determination are: (i) whether the Petition meets the threshold for constitutional petitions;(ii) whether the Petitioner’s rights were violated; (iii) whether the Petitioner is entitled to the reliefs sought. 56. On the first issue, the Interested Party alleged that the Petition did not meet the principles laid out in Anarita Karimi Njeru case for want of precision. The threshold outlined in the case was reiterated in Trusted Society of Human Rights Alliance v Attorney General & 2 others; Matemu (Interested Party); Kenya Human Rights Commission & another (Amicus Curiae) [2012] KEHC 2480 (KLR) where the court stated that: “45.We must point out that Anarita Karimi Njeru was decided under the old Constitution. The decision in that case must now be reconciled and be brought into consonance with the New Constitution. In our view, the present position with regard to the admissibility of petitions seeking to enforce the Constitution must begin with the provisions of article 159 on the exercise of judicial authority. Among other things, this article stipulates that: (d) justice shall be administered without undue regard to procedural technicalities; and (e)the purpose and principles of this Constitution shall be protected and promoted. 46.We do not purport to overrule Anarita Karimi Njeru as we think it lays down an important rule of constitutional adjudication: a person claiming constitutional infringement must give sufficient notice of the violation to allow her adversary to adequately prepare her case and to save the court from embarrassment of adjudicating on issues that are not appropriately phrased as justiciable controversies. However, we are of the opinion that the proper test under the new Constitution is whether a petition as stated raises issues which are so insubstantial and so attenuated that a court of law properly directing itself to the issue cannot fashion an appropriate remedy due to the inability to concretely fathom the constitutional violation alleged. The 25 | P a g e

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test does not demand mathematical precision in drawing constitutional petitions. Neither does it demand talismanic formalism in identifying the specific constitutional provisions which are alleged to have been violated. The test is a substantive one and inquires whether the complaints against respondents in a constitutional petition are fashioned in a way that gives proper notice to the respondents about the nature of the claims being made so that they can adequately prepare their case. 47.While the present petition might not be the epitome of precise, comprehensive, or elegant drafting, our view is that the complaints raised by the petitioner are concrete enough to warrant substantive consideration by the court: The petitioner complains against the appointment of the Interested Party to the Commission; and thinks that the appointment, at a minimum, violates article 73 of the Constitution as far as integrity and suitability of the interested party for the appointment to the position is concerned. That much seems not to be in doubt. Indeed, both the respondents and the interested party have proceeded from this understanding. They have sought to explain at length the contours of article 73 and chapter six of the Constitution in response to the petitioner’s allegations. If one needed evidence that these parties understood the claim facing them, it is to be found in their various papers filed in court and the oral submissions made in court. This being a constitutional issue of immense public importance and interest, we refuse to worship at the altar of formal fetishism on this issue and hold that the controversy at issue has been defined with reasonable precision to warrant a proper judicial determination on merits.” 57. The court is not persuaded that the instant Petition does not meet the threshold in Anarita Karimi Njeru’s case. It is clear what rights the Petitioner alleged to have been violated, by whom, the prejudice suffered to be suffered and the remedies he seeks. The issues raised herein are appropriately phrased as justiciable controversies which this Court can properly appreciate the 26 | P a g e

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allegations. The Petition therefore fully fits the bill, more so, because the Interested Party responded. 58. On the second issue, the Petition or alleges that the impugned actions of the Respondent and the Interested Party violated his rights under Articles 27, 36, 41, 47 and 50 of the Constitution. The necessity to link the aggrieved, and the constitutional violations to the specific provisions of the Constitution was outlined in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR as follows: “…Although article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Annarita Karimi Njeru v Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such a principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement...” 59. The Petitioner alleges that the rejection of his bid, even without loss of benefits, is a denial of fleet progression and command opportunity, which amounts to a substantial employment prejudice and an unfair labour practice. He further alleged discrimination, violation of rights to fair administrative action, freedom of association and right to be heard. In Barclays Bank of Kenya Ltd & another v Gladys Muthoni & 20 others [2018] KECA 718 (KLR) the Court of Appeal observed that: 27 | P a g e

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“58. Arbitrary discrimination in the workplace is outlawed at the highest level of the Constitution and has always been.” 60. Significantly, the Respondent, in its own admission, noted that the actions indeed amount to violation of the Petitioner’s rights. In its defence, it stated that it was not in agreement with the Interested Party’s actions, therefore apportioning all the liability to the Interested Party. Section 17 of the Evidence Act defines admission as follows: An admission is a statement, oral or documentary, which suggests any inference as to a fact in issue or relevant fact, and which is made by any of the persons and in the circumstances hereinafter mentioned. 61. The Respondent’s argument was that it could not proceed unilaterally as the Interested Party’s input was crucial in the decision making, and therefore its hands were tied. 62. From Section D of Schedule VI on administration, the Committee constitutes 8 members, 5 of whom, are from the Respondent. I have perused the minutes of 5th May 2026 which the Respondent alleged that it raised the issue against the Interested Party. I note that the meeting was attended by 16 persons, and at no point did the Respondent raise an issue of illegality of the decision in order to abrogate itself from liability. The Respondent’s contention that it was helpless is illogical in that it had a simple majority capable of voting against the Interested Party’s position. 63. It is both the Petitioners and the Respondent’s position that the CBA applies to the Petitioner by dint of his status as pilot, regardless of his non-membership to the Union. 28 | P a g e

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The Preamble of the CBA provides: 1. PREAMBLE This Memorandum of Agreement on Terms and Conditions of Service is made on the 19th day of December 2024 between Kenya Airways Public Limited Company (hereinafter referred to as the Company) and the Kenya Airline Pilot Association (hereinafter to as the Association) whereby the parties meeting together in free heart and voluntary association, have determined the Terms and Conditions of Service which shall apply to all employees who are in the service of the Company as pilots, except employees on specific contract terms. (emphasis added) 64. Vide a letter dated 15th February 2023, the Interested Party notified the Respondent’s Chief Human Resource Officer of the conversion of Petitioner’s union dues to agency fees due to his nonmembership. Relatedly, evidence of deduction of the agency fees by the Respondent. 65. Needless to belabur deduction of agency free by an employer is a prescription of law. Section 49 of the Labour Relations Act provides as follows: (1)A trade union that has concluded a collective agreement registered by the Employment and Labour Relations Court with an employer, group of employers or an employers’ organisation, setting terms and conditions of service for all unionisable employees covered by the agreement may request the Cabinet Secretary to issue an order requiring any employer bound by the collective agreement to deduct an agency fee from the wages of each unionisable 29 | P a g e

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employee covered by the collective agreement who is not a member of the trade union. Emphasis added 66. Section 59 of the Labour Relations Act on the other hand underlined the binding nature of CBAs as follows: (1) A collective agreement binds for the period of the agreement— (a) the parties to the agreement; (b) all unionisable employees employed by the employer, group of employers or members of the employers’ organisation party to the agreement; or (c) the employers who are or become members of an employers’ organisation party to the agreement, to the extent that the agreement relates to their employees. (2) A collective agreement shall continue to be binding on an employer or employees who were parties to the agreement at the time of its commencement and includes members who have resigned from that trade union or employers’ association. (3) The terms of the collective agreement shall be incorporated into the contract of employment of every employee covered by the collective agreement. (4) A collective agreement shall be in writing and shall be signed by— (a) the chief executive officer of any employer, the chief executive or national secretary of an employers’ organisation that is a party to the agreement or a representative designated by that person; and 30 | P a g e

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(b) the general secretary of any trade union that is a party to the agreement or a representative designated by the general secretary. (5) A collective agreement becomes enforceable and shall be implemented upon registration by the Employment and Labour Relations Court and shall be effective from the date agreed upon by the parties. 67. On seniority, Clause 12 of the CBA provides the provisions of Schedule VI shall be applicable as follows: 12. SENIORITY, PROMOTIONS AND TRAINING POLICY Seniority, Promotions and Training Policy for the employees shall be in accordance with Schedule VI attached to and forming part of this Agreement 68. From the foregoing, it is patently clear that the provisions of the CBA applied to the Petitioner even after his expulsion from union membership. Any treatment contrary to the provisions of the CBA amounted to discrimination which is prohibited under Article 27 of the Constitution and Section 5 of the Employment Act. The Respondent correctly submitted that the Interested Party had not produced any evidence in support of its purported actions and sanctions against the Petitioner. Certainly, from the materials and arguments tendered before this Court, the court is satisfied that the Respondent and the Interested Party discriminated against the Petitioner, and their actions were ultra vires and amounted to unfair labour practice. 69. This position was fortified by the Court of Appeal in Barclays Bank of Kenya Limited v Banking Insurance & Finance Union [2026] KECA 851 (KLR) as follows: 31 | P a g e

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“27. That position is untenable in light of the applicable statutory and contractual framework. Section 59(1)(b) and (3) of the Labour Relations Act provides that a registered Collective Bargaining Agreement (CBA) is binding on the parties and all unionisable employees, and that its terms are deemed to be incorporated into individual contracts of employment. This position has been expressly affirmed by this Court in Kenya Airways Limited -vs- Aviation & Allied Workers Union Kenya & 3 others [2014] KECA 403, where the Court held that a CBA is binding on the parties and all unionisable employees, and that its terms are incorporated into the contract of employment and become enforceable upon registration. … 29. However, as the Court of Appeal made clear in the Kenya Airways case, the terms of a CBA, once binding and incorporated into the contract of employment, are enforceable as such and cannot be disregarded…” 70. Relatedly, in National Bank of Kenya Limited v Hamida Bana & 103 others [2017] KECA 151 (KLR) the Court of Appeal held: “24. A concomitant of the doctrine of freedom to contract is the binding force of the contracts. See Chitty on Contracts (supra) Para 1-036. As such, the learned Judge by holding otherwise re-wrote the terms of the VER contrary to the intention of the parties. It did not matter that the respondents got less favourable terms than those that were provided for under the HR manual or CBA. What matters is that the parties voluntarily agreed on the terms of the VER which ought to have been enforced. We agree and adopt the reasoning of Lord Hoffman in Attorney General of Belize vs. Belize Telecom Ltd [2009] UKPC 10 to the effect that:“The court has no power to improve upon the instrument which it is called upon to construe, whether it be a contract, a statute, or articles of association. It cannot introduce terms to make it fairer or more reasonable. It is concerned only to discover what the instrument means … It is the meaning which the instrument would convey to a reasonable person having all the background knowledge which would be reasonably available to the audience to whom the instrument is addressed.” 32 | P a g e

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71. In Monica Munira Kibuchi & 6 others v Mount Kenya University; Attorney General (Interested Party) [2021] eKLR the court held that: “55. Labour rights are part of the Bill of Rights by virtue of Article 41 of the Constitution. Article 24 of the Constitution prohibits the limitation of a right or a fundamental freedom in the Bill of Rights except by law and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. 56. Apart from life and land ownership, employment ranks among the most emotive issues in a person’s life. Failure to secure a job and or loss of one has a direct relationship with a person’s confidence, dignity and place in society. Prof Ojwang’ J (as he then was) in the case of Menginya Salim Murgani v. Kenya Revenue Authority HCCC No. 1139 of 2002 aptly observed as follows:“…In so far as the employee spends the bulk of his or her time in the service of the employer, there is little other livelihood, in the employee outside the framework of the employment relationship. Of this fact, this Court takes judicial notice; and it must then be considered that the status of employment relationship inherently vests in the employee both normal rights and legitimate expectations…” 57. Any legislation therefore which intends to limit or qualify a labour right, ought to be to the extent that the limitation or qualification is reasonable and justifiable in an open and democratic society. 72. In the court’s view, the decision taken against the Petitioner was grossly unreasonable and irrational. Council of Civil Service Union v Minister for the Civil Service (1984) 3 ALL ER 935 the court explained the term irrational as follows: “By irrationality I mean what can now be succinctly referred to as Wednesbury unreasonableness … it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had 33 | P a g e

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applied his mind to the question to be decided could have arrived at it.” 73. On the alleged constructive dismissal, the same is untenable as the Petitioner’s failed to demonstrate the principles laid down by the Court of Appeal in Coca Cola East & Central Africa Limited v Maria Kagai Ligaga [2015] KECA 394 (KLR) as follows: 30. “The legal principles relevant to determining constructive dismissal include the following: a. What are the fundamental or essential terms of the contract of employment? b. Is there a repudiatory breach of the fundamental terms of the contract through conduct of the employer? c. The conduct of the employer must be a fundamental or significant breach going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. d. An objective test is to be applied in evaluating the employer’s conduct. e. There must be a causal link between the employer’s conduct and the reason for employee terminating the contract i.e. causation must be proved. f. An employee may leave with or without notice so long as the employer’s conduct is the effective reason for termination. g. The employee must not have accepted, waived, acquiesced or conducted himself to be estopped from asserting the repudiatory breach; the employee must within a reasonable time terminate the employment relationship pursuant to the breach. h. The burden to prove repudiatory breach or constructive dismissal is on the employee.” i. Facts giving rise to repudiatory breach or constructive dismissal are varied. 34 | P a g e

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The Petitioner did not adduced evidence to prove that the respondent’s conduct amounted to a repudiatory breach of the contract of employment. 74. From the foregoing, the court find that the Petition is partially merited and the Petitioner is therefore entitled to the reliefs sought as follows” 75. On damages, the court is guided by the holding in Africa Commission on Human and Peoples' Rights v Republic of Kenya [2022] AfCHPR 1 (KLR) that: “86.In so far as the question of causation for moral prejudice is concerned, the court recalls that in Zongo and others v Burkina Faso it held that the causal link between the wrongful act and the moral prejudice suffered, may result from the violation of a human right, as an automatic consequence, without any need to prove otherwise. 36 In terms of quantification of damages for moral harm, the court, reaffirmed that such a determination should be done equitably taking into account the specific circumstances of each case. 37 87.The court confirms, therefore, that international law requires that the determination of compensation for moral damage should be done equitably taking into account the specific circumstances of each case.38 The nature of the violations and the suffering endured by the victims, the impact of the violations on the victim’s way of life and length of time that the victims have had to endure the violations are among the factors that the court considers in determining moral prejudice. The Petitioner is awarded the equivalent of three (3) month’s salary as damages for violation of his rights. 35 | P a g e

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76. Consequently, judgement is entered in favour of the Petitioner in terms of prayers a, b, c, d, f, g, h and i. In the end judgments is entered in favour of the Petitioner against the Respondent in terms of Prayers a, b, c, d, f, g, h and I of the Petition. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 30TH SEPTEMBER, 2026 DR. JACOB GAKERI JUDGE ORDER In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil 36 | P a g e

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Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes. DR. JACOB GAKERI JUDGE 37 | P a g e

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