Kenya Concrete, Structural, Ceramic Tiles, Woodplys & Interior Design Workers Union v Bomi Engineering and Construction Company

employees/members of the Claimant, with all arrears for the period of the lock out under the employees’ respective contracts of employment. (c) An order directing the Respondent to fully implement the CBA without any difficulty or disadvantaging action against any member of the Claimant. (d) Restrain the Respondent from any act of victimization, including termination of existing appointments and dismissing the workers/employees herein on account of the suit DRAFT herein. (e) Any other order that the Court deems fit and just to meet the ends of justice. (f) 2. That costs of the suit be borne by the Respondent. It is pleaded by the Claimant that there exists a valid Recognition Agreement and a Collective Bargaining Agreement, signed by the Claimant and the Respondent on 22nd July, 2022 and 17th August, 2022 respectively; that the CBA was subsequently registered as RCA No. 249 of 2022. RULING Nairobi ELRC Cause No. E779 of 2023 2 of 15

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The Application 3. The application before me for determination is the Respondent’s Notice of Motion dated 13th November, 2025. The application is expressed to be brought under Rule 63 of the Employment and Labour Relations Court (Procedure) Rules and Section 22 of the Employment and Labour Relations Court Act. The Respondent/Applicant seeks the following Orders:DRAFT (a) That the Claimant’s statement of claim dated 26th September, 2023 and filed on even date by the Claimant Union be struck off in its entirety for being incompetent, misconceived and bad in law [for] having been instituted without valid authority or mandate. (b) That the Court be pleased to make such further orders as it may deem fit. (c) That costs of the application be awarded to the Respondent. RULING Nairobi ELRC Cause No. E779 of 2023 3 of 15

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4. The application sets out on its face the grounds upon which it is brought, which grounds are replicated in the affidavit of Stanley Kiarie sworn on 13th November, 2025 in support of the application. It is deponed in the said affidavit:(a) that the suit herein being an employer – employee suit, the Claimant lacks the requisite locus standi to institute the suit in its name on behalf of its members. (b) that the Claimant has not filed or served a list of its authorised officers and a proper notice of appointment pursuant to Rule 63(2), (3) & (4) of DRAFT the Employment and Labour Relations Court (Procedure) Rules. (c) that the Claimant has not demonstrated that the employees it purports to represent are its bona fide members; and that it possesses the requisite mandate from them to institute and to maintain the proceedings herein. (d) that the claim herein has been filed without proper authorization, locus standi, and is frivolous, vexatious, is an abuse of the Court’s process, and ought to be struck out in its entirety. RULING Nairobi ELRC Cause No. E779 of 2023 4 of 15

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5. The application is opposed by the Claimant vide a replying affidavit and a further replying affidavit sworn on 13 th November, 2025 and 26th March, 2026 respectively. It is deponed in the said affidavits, inter alia:(a) that by dint of Article 22(2)(d) of the Constitution of Kenya 2010, the Claimant has authority to institute proceedings on behalf of its members; and Rule 63(1) of the Employment and Labour Relations Court (Procedure) Rules 2024. (b) that the Respondent’s employees have a DRAFT fundamental right under Article 41(2)(c) of the Constitution of Kenya 2010 to join and to participate in the activities of a trade union that they have chosen, and that the Claimant is obligated to represent them in disputes pursuant to Article 22(2)(c) of the Constitution of Kenya and Rule 63(1) of the Employment and Labour Relations Court (Procedure) Rules, including the suit herein; a position which is affirmed by Rule 63(2) of the said Rules. RULING Nairobi ELRC Cause No. E779 of 2023 5 of 15

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(c) that as a practice, Trade Unions and Employers’ Organizations furnish the Registrar’s Office with lists of persons authorised to represent them before the Court just once, and not with every case filed. That such lists are updated in the event of any such authorised persons leaving office. (d) that the suit herein was filed by the Claimant, which is duly registered under the Labour Relations Act, and that the Claimant subsequently appointed the Firm of Mwenesi and Company DRAFT Advocates to appear for it in the suit. (e) that it serves no purpose for the Claimant to file a parallel notice of appointment. (f) that the grievants have seconded one of them as a witness, and a witness statement filed. That the dispute herein is not about union membership. (g) that the parties herein have signed a Recognition Agreement and a Collective Bargaining Agreement, facts which have not been disputed. RULING Nairobi ELRC Cause No. E779 of 2023 6 of 15

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That the allegation that there is no proof of membership is misleading. 6. As already stated in this Ruling, the application herein is expressed to be brought “pursuant to Rule 63 of the ELRC (Procedure) Rules and Section 22 of the ELRC Act”. It is to be noted that the suit herein was filed in Court 26th September, 2023, and that the ELRC Rules in place at that time were the Employment and Labour Relations Court (Procedure) Rules, 2016. The said Rules (2016 Rules) were revoked (repealed) by dint of Rule 84 of the DRAFT Employment and Labour Relations Court (Procedure) Rules 2024, which commenced/became operational on 16 th August, 2024 (Legal Notice No. 133 of the said date). 7. The application herein was filed in November 2025, and is clearly brought under the 2024 Rules, although the Respondent/Applicant appears to have left out the year (2024) in its citation of the law pursuant to which the application is brought. Rule 63(2), (3), (4) and (5) of the Employment and Labour Relations Court (Procedure) Rules RULING Nairobi ELRC Cause No. E779 of 2023 7 of 15

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2024 is, however, set out verbatim at paragraph 5 of the Respondent/Applicant’s aforesaid supporting affidavit. 8. It is trite that the law does not operate in retrospect. The Claimant cannot be accused of non-compliance with a law and/or Rules of Procedure which did not exist when the suit herein was filed. 9. I have noted from the Court’s record that documents that were filed alongside the Claimant’s Statement of Claim dated 26th September, 2023 include the affidavit in DRAFT verification of the Claimant’s claim, a witness statement and a list and bundle of documents. The listed and filed documents include a Recognition Agreement and a CBA signed by the Claimant and the Respondent, among other evidential documents. Also exhibited is a list of the Respondent’s 466 alleged employees, complete with tabulations of each employee’s/grievant’s claim. 10. The allegation by the Respondent that the Claimant has not demonstrated that the grievants (the Respondent’s employees) are its members is pre-mature, as such RULING Nairobi ELRC Cause No. E779 of 2023 8 of 15

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matters can only be determined upon presentation of evidence in a trial. Further, the fact that both parties have signed a Recognition Agreement and a CBA means that the Claimant Trade Union has or had membership in the Respondent/Applicant company. The Court of Appeal stated as follows in Modern Soap Factory – vs – Kenya Shoe and Leather Workers Union – Civil Appeal No. 37 of 2019 (Mombasa) [2020] eKLR:“16. Article 41 of the Constitution of Kenya on Labour Relations protects the right of every person to fair labour practices and the right, DRAFT amongst others, to join a trade union, which in turn has the right to determine its activities. Article 258 of the Constitution on enforcement of the Constitution provides in Article 258(2)(d) that an association acting in the interest of one or more of its members may institute proceedings where the Constitution is contravened or threatened with contravention. In the same spirit, Section 22 of the Employment and Labour Relations Court Act provides that: RULING Nairobi ELRC Cause No. E779 of 2023 9 of 15

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“In any proceedings before the Court or a Subordinate Employment and Labour Relations Court, a party to the proceedings may act in person or be represented by an advocate, an office bearer or official of the party’s trade union or employers’ organization and, if the party is a juristic person, by a director or an employee specifically authorised for that purpose.” DRAFT 11. The Court of Appeal further stated in the Modern Soap Factory Case (Supra):“17. We can see no reason therefore to fault the conclusion by the Judge that the Respondent has locus standi to institute the claims on behalf of its members. That said, whether an employee is a member of a Union is a question of fact. Where there is a contest as to whether an employee is a member of a union, evidence would be required to settle that question. It is not a RULING Nairobi ELRC Cause No. E779 of 2023 10 of 15

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matter that is amenable for determination on the basis of a preliminary objection. (See Mukisa Biscuit Manufacturing Co. Ltd – vs – West End Distributors Ltd [1969] E.A 696.” 12. On the allegation that the Claimant/Respondent has not filed a list of its officers authorised to represent it in the suit herein, it is worthy noting that the Respondent/Applicant has not demonstrated that the Claimant’s pleadings herein were signed by an unauthorised person. The burden of proving that the Claimant’s suit herein is incompetent and frivolous DRAFT lies on it. Section 107 of the Evidence Act (Cap. 80 Laws of Kenya) is called in aid. 13. Further, I have noted that the Claimant has since appointed Counsel to represent it in the proceedings herein. 14. Can a trade union sue in its name on behalf of its members? 15. The Claimant’s pleadings already filed demonstrate the existence of a dispute that is capable of being determined by RULING Nairobi ELRC Cause No. E779 of 2023 11 of 15

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application of the law. Article 50(1) of the Constitution of Kenya provides as follows:“(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court, or if appropriate, another independent and impartial tribunal or body.” 16. By dint of Article 159(2)(d) of the Constitution of Kenya 2010, this Court is obligated to administer justice without DRAFT undue regard to procedural technicalities. This position is echoed in Section 20(1) of the Employment and Labour Relations Court Act; which gives this Specialised Court wide judicial powers in ensuring that substantive justice is done to parties litigating before it. Section 20(1) of the Employment and Labour Relations Court Act provides as follows:“(1) In any proceedings to which this Act applies, the Court shall act without undue regard to technicalities. RULING Nairobi ELRC Cause No. E779 of 2023 12 of 15

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Provided that the Court may inform itself on any matter it considers just and may take into account opinion evidence and such facts as it considers relevant and material to the proceedings.” 17. Pursuant to Section 12(3)(viii) of the aforesaid Act, this Court can give any appropriate relief as the Court may deem fit to grant. 18. Having said that, and having considered written submissions filed herein, I find no merit in the Respondent’s Notice of DRAFT Motion dated 13th November, 2025, and the same is hereby dismissed with costs to the Claimant. 19. The suit herein shall be fast-tracked, and shall be set down for hearing/trial on priority basis, unless parties herein resolve it by consent. 20. The Respondent shall file and serve all its pleadings within fourteen (14) days of today, if it has not done so. Any party wishing to file further documents and/or witness statements, RULING Nairobi ELRC Cause No. E779 of 2023 13 of 15

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or to amend its already filed pleadings shall do so within twenty-one (21) days of the date of this Ruling. 21. Orders accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF SEPTEMBER 2026 AGNES KITIKU NZEI JUDGE DRAFT ORDER This Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. AGNES KITIKU NZEI JUDGE Appearance: Mr. Angoya for the Claimant RULING Nairobi ELRC Cause No. E779 of 2023 14 of 15

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No appearance for the Respondent DRAFT RULING Nairobi ELRC Cause No. E779 of 2023 15 of 15

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