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ELRCDismissedCause No. E777 of 2025

Bakery, Confectionery, Food Manufacturing and Allied Workers Union v Norda Industries Ltd & another

Employment and Labour Relations Court
25 September 2026
6,762 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to strike out a union's CBA lawsuit against Norda Industries and an outsourcing firm, so the case proceeds to full trial.

What this practically means

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Executive summary

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The trade union Claimant sued Norda Industries Ltd and Platinum Outsourcing and Logistics EA Ltd, alleging breach of members' constitutional rights under articles 36 and 41 through refusal to conclude CBA negotiations after the 2015-2017 CBA lapsed. It sought declarations, prohibitory orders, compulsion of CBA execution, remittance of union dues and agency fees, and quashing of the outsourcing agreement. Both Respondents filed applications to strike out the suit, raising limitation under section 89 of the Employment Act, non-disclosure of cause of action, enforcement of an expired CBA, misjoinder, prematurity, and the Claimant's alleged failure to meet the statutory recognition threshold. The court dismissed both applications. It held that section 89 does not apply because the dispute arises under collective employment law governed by the Labour Relations Act, not a contract of service; and in any event the claim is a continuing injury not yet ceased. It held that a Recognition Agreement is not automatically voided when membership falls below the threshold - revocation vests exclusively in the National Labour Board - and that absence of a Recognition Agreement does not bar a union from litigating for its members. The non-disclosure application failed because it was supported by affidavit evidence contrary to Order 2 rule 15(2). Misjoinder objections failed under Order 1 rules 7 and 9 and the dominus litis principle. The court may compel CBA conclusion where an employer places unreasonable obstacles, and the employer status of the outsourcing company and the legitimacy of the outsourcing arrangement must be determined at full trial. Costs of the applications were ordered to abide the outcome of the suit.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit is time barred under section 89 of the Employment Act
  2. 2.Whether the draft CBA is overtaken by events and unenforceable
  3. 3.Whether the suit discloses a reasonable cause of action given the alleged failure to meet the statutory recognition threshold
  4. 4.Whether the applications for striking out for non-disclosure of cause of action are competent
  5. 5.Whether the suit should be struck out for misjoinder of parties
  6. 6.Whether the suit is incompetent for seeking to compel execution of a CBA whose terms are unagreed
  7. 7.Whether the 2nd Respondent, as an outsourcing company, stands in the position of an employer

Key legal issues

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01

Limitation under section 89 of the Employment Act

Holding

The objection fails; section 89 does not apply to this collective labour dispute, and in any event the claim is a continuing injury not yet ceased

Reasoning

The court assumed arguendo the Claimant's continuing-injury position per German School Society v Ohany, noting the injury would only cease upon signing the CBA, which had not occurred. It then held the dispute arises under the Labour Relations Act (collective employment law), not a contract of service or the Employment Act, so section 89 is inapplicable. Constitutional claims are also not defeated by limitation statutes.

p. 16
02

Recognition threshold and locus standi

Holding

The Recognition Agreement remains in force absent revocation by the National Labour Board, and lack of a Recognition Agreement does not bar the union's suit

Reasoning

Revocation power vests exclusively in the National Labour Board under section 54(5) of the Labour Relations Act; falling below the threshold does not automatically void the agreement (Micato Safaris). A Recognition Agreement is only essential for collective bargaining (Modern Soap Factory), so the locus standi objection is misplaced. Whether the threshold is met is a matter for trial.

p. 20
03

Striking out for non-disclosure of cause of action

Holding

The request is untenable because the Respondents supported it with affidavit evidence contrary to Order 2 rule 15(2)

Reasoning

Order 2 rule 15(2) of the Civil Procedure Rules prohibits evidence in support of such applications. The Respondents' affidavits invoked averments to support the non-disclosure plea, rendering the request non-compliant with an express provision of law.

p. 22
04

Misjoinder of parties

Holding

The plea is declined; a plaintiff in doubt may sue multiple defendants and the court determines liability at trial

Reasoning

Order 1 rule 9 provides no suit shall be defeated by misjoinder; Order 1 rule 7 permits joining defendants where the plaintiff is in doubt. The dominus litis principle entitles a claimant to choose whom to sue (Civicon). Privity of contract is a question of fact and law for trial, particularly given the 1st Respondent's admission that some claimant members are its employees.

p. 22
05

Compelling execution of an unagreed CBA

Holding

The suit is not incompetent; the court may compel conclusion of CBA negotiations if unreasonable refusal is proved at trial

Reasoning

CBAs are substantially regulated by statute; section 57(1) of the Labour Relations Act obliges an employer with a Recognition Agreement to conclude a CBA. While negotiations should be voluntary, the court may compel an employer who places unreasonable obstacles (Micato Safaris). Whether the refusal was without valid reason is for trial.

p. 27
06

Employer status of the outsourcing company

Holding

Not determinable on interlocutory applications; an outsourcing company may stand as employer unless the arrangement is a cloak to evade employer obligations

Reasoning

Abyssinia Iron & Steel holds an outsourcing company stands in the position of an employer unless the arrangement is a cloak. The two Respondents sharply disagree on who employs the members, demonstrating this is not a clear case for conclusive interlocutory findings; the legitimacy of the outsourcing must be tested at full trial.

p. 29

Legal principles established

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  • A Recognition Agreement is not automatically revoked when union membership falls below the statutory threshold; revocation vests exclusively in the National Labour Board
  • Absence of a Recognition Agreement does not bar a trade union from litigating on behalf of its members; it is only essential for collective bargaining
  • Section 89 of the Employment Act applies to proceedings arising from a contract of service or under the Employment Act, not to collective labour disputes under the Labour Relations Act
  • Statutes of limitation do not defeat constitutional claims; only laches may apply to inordinate and unreasonable delay
  • A plaintiff is dominus litis and may join defendants it believes it has a cause of action against where in doubt as to whom redress lies
  • Striking out pleadings is a draconian remedy reserved for the clearest of cases and as a last resort
  • An employer with a subsisting Recognition Agreement is under a statutory duty to conclude a CBA, and the court may compel conclusion where the employer places unreasonable obstacles
  • An application to strike out a pleading for non-disclosure of a cause of action cannot be supported by evidence

Court orders

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  1. 1.The applications dated 23rd September 2025 and 21st October 2025 are unmerited and are dismissed
  2. 2.Costs of the applications to abide the outcome of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Labour Relations Act matters; articles 36 and 41 of the Constitution invoked in the claim)

Relief refused

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Striking out of the suit or of the claim against the 1st Respondent on all grounds raised (limitation, non-disclosure, expired CBA, misjoinder, recognition procedure, prematurity, frivolity)

All grounds failed; contested factual and legal issues require determination at full trial

p. 29

Striking out of the suit against the 2nd Respondent

Striking out is a draconian remedy; the employer-status of the outsourcing company and legitimacy of the outsourcing arrangement must be determined at trial

p. 28

Costs

Costs of the applications to abide the outcome of the suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the court finds that the two applications dated 23rd September 2025 and 21st October 2025 are unmerited. As such, they are dismissed. Costs of the applications to abide the outcome of the suit.
p. 29Final orders - dismissal of both striking-out applications
Until the Board revokes it (the agreement), it (the agreement) remains in force notwithstanding that the trade union's membership has fallen below the threshold for recognition.
p. 20Recognition Agreement not automatically voided
A Recognition Agreement is only essential for purposes of collective bargaining
p. 20Locus standi of trade unions without Recognition Agreements
the dispute is founded on collective employment law which falls within the realm of the Labour Relations Act
p. 17Inapplicability of section 89 Employment Act to collective disputes
statutes of limitation do not operate to defeat grievances which are founded on alleged breaches of the Constitution
p. 18Limitation and constitutional claims
Striking out of a suit and/or pleading is however a draconian and drastic measure which should be resorted to only sparingly and as the very last resort.
p. 28Striking out as a draconian remedy
The general rule of practice is that the plaintiff is "dominus litis."
p. 25Dominus litis principle
an application for striking out a pleading for want of disclosure of a cause of action or defense shall not be supported by evidence
p. 21Order 2 rule 15(2) prohibition on evidence

Issues in the judgment

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minor

Ruling dated 2026 but Cause number is E777 of 2025 and the 1st Respondent's replying affidavit is dated 17th April 2026; chronology consistent but unusually long pendency

minor

Claimant's prayer (e) seeks to compel execution of 'the outstanding CBA' while Respondents describe it as the 2017-2019 draft CBA; the court does not resolve which instrument is sought

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Bakery, Confectionery, Food Manufacturing and Allied Workers Union v Norda Industries Ltd & another", Case Analysis (2026). Cause No. E777 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2576/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.