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ELRCDismissedCause No. E779 of 2023

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

Employment and Labour Relations Court
30 September 2026
2,208 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed that trade unions can sue for their members, and employers cannot use new 2024 procedural rules to strike out older cases.

What this practically means

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Executive summary

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The Claimant trade union sued the Respondent claiming that the lockout of its 466 members was unconstitutional and unlawful, seeking withheld salaries, implementation of a CBA registered as RCA No. 249 of 2022, and protection from victimisation. The Respondent filed a Notice of Motion dated 13th November 2025 seeking to strike out the statement of claim in its entirety for want of locus standi, absence of a list of authorised officers and notice of appointment under Rule 63 of the ELRC (Procedure) Rules, and lack of demonstrated membership and mandate. The Claimant opposed, relying on Articles 22(2)(d) and 41(2)(c) of the Constitution, Section 22 of the ELRC Act, and the existence of a Recognition Agreement and CBA. Justice Agnes Kitiku Nzei held that the suit was filed in September 2023 when the 2016 Rules were in force, and the 2024 Rules could not be applied retrospectively. Following the Court of Appeal's Modern Soap Factory decision, she held that a trade union has locus standi to sue on behalf of its members, and that contested union membership is a question of fact requiring evidence at trial, not determinable on a preliminary objection. The burden lay on the Respondent to prove incompetence, which it failed to discharge. Invoking Article 159(2)(d) and Section 20(1) of the ELRC Act, the court dismissed the application with costs to the Claimant, fast-tracked the suit for priority hearing, and directed the Respondent to file pleadings within 14 days and any further documents or amendments within 21 days.

Questions the Court framed

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

  1. 1.Whether the Respondent's Notice of Motion dated 13th November 2025 to strike out the Claimant's statement of claim has merit
  2. 2.Whether the Claimant trade union has locus standi to sue in its name on behalf of its members
  3. 3.Whether the Claimant complied with Rule 63 of the ELRC (Procedure) Rules regarding lists of authorised officers and notice of appointment
  4. 4.Whether proof of membership is required at the interlocutory stage

Key legal issues

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01

Locus standi of a trade union to sue on behalf of members

Holding

A trade union has locus standi to institute claims on behalf of its members under Article 22(2)(d)/258(2)(d) of the Constitution and Section 22 of the ELRC Act

Reasoning

Relying on the Court of Appeal's Modern Soap Factory decision, the court held that Article 41 protects the right to join a trade union, and an association acting in the interest of its members may institute proceedings. Section 22 of the ELRC Act permits representation by an office bearer or official of the party's trade union. The union's suit was therefore properly instituted.

p. 10
02

Compliance with Rule 63 of the ELRC (Procedure) Rules 2024

Holding

The 2024 Rules did not apply to a suit filed in 2023 under the 2016 Rules; retrospective application is impermissible

Reasoning

The suit was filed on 26th September 2023 when the 2016 Rules were in force. The 2024 Rules commenced on 16th August 2024. The court held that law does not operate in retrospect, so the Claimant could not be accused of non-compliance with rules that did not exist when the suit was filed.

p. 8
03

Proof of union membership at interlocutory stage

Holding

Allegation that grievants are not bona fide members is premature and can only be determined upon evidence at trial

Reasoning

The court noted that a Recognition Agreement and CBA had been signed by the parties, indicating the union had membership in the company. Following Modern Soap Factory and Mukisa Biscuit, contested questions of membership are questions of fact requiring evidence, not determinable on a preliminary objection or striking-out application.

p. 8
04

Procedural technicalities versus substantive justice

Holding

The court is obligated under Article 159(2)(d) and Section 20(1) of the ELRC Act to administer justice without undue regard to procedural technicalities

Reasoning

The court invoked Article 159(2)(d) of the Constitution and Section 20(1) of the ELRC Act, which require the court to act without undue regard to technicalities. The Claimant had since appointed counsel, and the pleadings demonstrated a dispute capable of determination, so striking out would defeat substantive justice.

p. 12

Legal principles established

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  • A law cannot be applied retrospectively; a party cannot be faulted for non-compliance with rules that did not exist when the suit was filed
  • Whether an employee is a member of a union is a question of fact requiring evidence, not amenable to determination by preliminary objection
  • The burden of proving that a suit is incompetent and frivolous lies on the party asserting it

Court orders

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  1. 1.The Respondent's Notice of Motion dated 13th November 2025 is dismissed with costs to the Claimant
  2. 2.The suit is fast-tracked and set down for hearing/trial on priority basis unless resolved by consent
  3. 3.The Respondent to file and serve all its pleadings within fourteen (14) days if not already done
  4. 4.Any party wishing to file further documents, witness statements or amend pleadings to do so within twenty-one (21) days of the date of the Ruling

The bench

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

Wrote the judgment

Jurisdiction invoked
Article 162(2) Constitution / Employment and Labour Relations Court Act (court's specialised jurisdiction); application under Rule 63 ELRC (Procedure) Rules 2024 and Section 22 ELRC Act

Relief refused

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Striking out of the Claimant's statement of claim in its entirety

Application lacked merit; locus standi exists under Article 22(2)(d)/258(2)(d) and Section 22 ELRC Act; membership is a question of fact for trial; non-compliance with 2024 Rules cannot be retroactively alleged

p. 13

Costs

Application dismissed with costs to the Claimant.

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.

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.
p. 8Non-retroactivity of procedural rules
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 matter that is amenable for determination on the basis of a preliminary objection.
p. 10Union membership as a question of fact for trial
I find no merit in the Respondent’s Notice of Motion dated 13th November, 2025, and the same is hereby dismissed with costs to the Claimant.
p. 13Disposition - dismissal of striking-out application
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.
p. 13Final orders - fast-tracked hearing

Issues in the judgment

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minor

Application dated 13th November 2025 and replying affidavits sworn 2025/2026 in a cause numbered 2023 - dates appear far removed from filing; possibly typographical

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, "Kenya Concrete, Structural, Ceramic Tiles, Woodplys & Interior Design Workers Union v Bomi Engineering and Construction Company", Case Analysis (2026). Cause No. E779 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2757/eng@2026-09-30

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