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

3. The Claimant avers that despite having entered into a Recognition Agreement with the 1st Respondent, the latter has declined to negotiate and sign a Collective Bargaining Agreement (CBA) between them after the CBA which they entered into in 2015 lapsed in April 2017. It (the Claimant) avers that instead of the 1st Respondent finalizing the process, it has deployed various tactics to evade the process, including alleging that it (the 1 st Respondent) has outsourced its human resource function to the 2 nd Respondent and that the Claimant does not have a simple majority of its (the 1 st Respondent) workforce to entitle the two (Claimant and 1st Respondent) to conclude a new CBA. 4. The Claimant contends that following the 1 st Respondent’s refusal to finalize the CBA negotiations, it reported a trade dispute to the Ministry of Labour and Social Protection where after a conciliator was appointed to arbitrate the dispute. However, it contends that this did not resolve the dispute. 5. The Claimant further contends that the 1 st Respondent lodged an application with the National Labour Board to revoke the Recognition Agreement between them. However, it avers that the application was declined. 6. The Claimant thus prays for the various reliefs set out in the Memorandum of Claim to wit:a) A declaration that the Respondents have infringed upon the rights of their employees under articles 36 and 41 of CAUSE NO. E777 OF 2025 2

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the Constitution by refusing to conclude the CBA negotiations. b) An order to prohibit the Respondents from continuing to violate the aforesaid rights. c) A declaration that the Respondents are joint and or separate employers of unionized employees within their rank and file. d) An alternative order to quash the outsourcing agreement between the Respondents. e) An order to compel the Respondents to jointly execute the outstanding CBA. f) An order to compel the Respondents to remit union dues and agency fees for unionized and unionizable employees currently within their rank and file. g) Costs of the case. 7. The Respondents have opposed the claim. On its part, the 1 st Respondent concedes that it indeed entered into a Recognition Agreement with the Claimant in August 2011. It further acknowledges that upon signing the Recognition Agreement, it entered into a CBA with the Claimant for the period between May 2015 and April 2017. 8. The 1st Respondent acknowledges that as the aforesaid CBA was nearing its expiry date, the parties (the Claimant and the 1st Respondent) commenced negotiations for the CBA that was to cover the period ending 2019. However, it avers CAUSE NO. E777 OF 2025 3

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that the parties did not agree on some aspects of the proposed CBA. 9. The 1st Respondent avers that as negotiations on the outstanding items of the draft CBA were ongoing, it suffered a fire incident, a matter which paralyzed its operations. It contends that it was forced to suspend its undertakings as a result. It further contends that some of its employees were declared redundant and laid off due to the incident. 10. The 1st Respondent contends that the laying off of a section of its workforce inevitably reduced the Claimant’s membership. Consequently, it contends that the Claimant lost the statutory threshold required for recognition and that this remains the position to date. 11. The 1st Respondent asserts that as a consequence of the aforesaid events, the Recognition Agreement between them (the 1st Respondent and the Claimant) was voided by law. As such, it avers that the said agreement ceased to exist. 12. The 1st Respondent avers that in 2018, it applied for revocation of the impugned Recognition Agreement. Further, it avers that it outsourced its human resource function to the 2nd Respondent with the concurrence of the Ministry of Labour. 13. The 1st Respondent asserts that the Claimant did not pursue the CBA negotiations between 2018 and 2025. It contends that the only matter which the Claimant revived in 2023 related to remittance of trade union dues. It contends that in CAUSE NO. E777 OF 2025 4

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July 2025, the Claimant served it with a check off form for thirty seven (37) employees. 14. The 1st Respondent avers that after scrutinizing the form, it noted that only seven (7) of the thirty seven (37) individuals on the form were its employees. It avers that the rest of the individuals were employees of the 2nd Respondent. It further avers that it notified the Claimant of this fact through its letter dated 18th August 2025. 15. The 1st Respondent avers that having regard to these developments, the Claimant has not met the statutory threshold for recognition. It contends that the Claimant should direct its claim to the 2 nd Respondent who is the employer of a majority the persons in respect of whom it seeks recognition and negotiation of a CBA. 16. The 1st Respondent avers that the instant claim against it is misconceived since it (the 1st Respondent) is not the employer of a majority of the Claimant’s members. It further avers that the instant claim is bad in law since it seeks to implement an outdated CBA for the period 2017-2019. 17. On its part, the 2nd Respondent avers that it entered into an outsourcing agreement with the 1st Respondent on 7th February 2025 pursuant to which it deployed some of its workers to render services to the 1 st Respondent. It (the 2nd Respondent) contends that the Claimant has never approached it for negotiations or discussions regarding deduction of trade union dues from its (the 2 nd Respondent) CAUSE NO. E777 OF 2025 5

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workers. It denies knowledge of any CBA negotiations with the Claimant. It further avers that it was not, in any event, party to the discussions relating to the 2017-2019 draft CBA. 18. The 2nd Respondent asserts that the Claimant has not met the statutory threshold for recognition. Consequently, it contends that it has no Recognition Agreement with the Claimant and cannot therefore enter into any CBA negotiations with the Claimant. 19. The 1st Respondent subsequently filed the application dated 23rd September 2025. The application seeks a plethora of reliefs to wit the following:a) An order to strike out the suit for being scandalous, frivolous, vexatious and an abuse of the court process. b) An order to strike out the suit for failure to disclose a cause of action. c) An order to strike out the suit for being incompetent and fatally defective on account of seeking to enforce an expired CBA. d) In the alternative, an order to strike out the claim against the 1st Respondent for misjoinder of parties. e) An order to strike out the suit for failure to comply with the provisions of law regarding the procedure for recognition of a trade union. f) An order to strike out the suit for being statute barred on account of section 89 of the Employment Act. CAUSE NO. E777 OF 2025 6

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g) In the alternative, an order to strike out the suit for being premature. h) Costs of the application. 20. The application is founded on the grounds which appear on the face thereof and the affidavit of one Faraz Alnur Ramji (the affiant). The affiant avers that after the 1 st Respondent’s operations were affected by a fire incident in 2017, it declared several of its employees redundant. He contends that the redundancies reduced the Claimant’s membership thereby depriving it (the Claimant) of the statutory threshold for recognition. 21. The affiant avers that on 25th July 2025, the 1st Respondent received a check off form from the Claimant asking it (the 1 st Respondent) to effect trade union deductions from thirty seven (37) individuals. He avers that when the check off form was scrutinized, it turned out that only seven (7) out of the thirty seven (37) names were employees of the 1 st Respondent. He avers that the rest of the individuals were employees of the 2nd Respondent. 22. The affiant avers that the 1 st Respondent informed the Claimant of this fact through its letter dated 18 th August 2025. He further avers that the 1 st Respondent notified the Claimant that based on the foregoing, it (the Claimant) had not met the statutory threshold for recognition or for entering into CBA negotiations with it (the 1 st Respondent). CAUSE NO. E777 OF 2025 7

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23. The affiant contends that because the 2 nd Respondent is the employer of a majority of the outsourced employees working for the 1st Respondent, the Claimant should have approached the 2nd Respondent for recognition and for CBA negotiations. He contends that instead of the Claimant doing this, it instituted the instant proceedings against the 1 st Respondent. 24. The affiant asserts that the Claimant has not instituted the suit as a recognition dispute. He avers that the suit seeks to enforce an expired CBA. 25. The affiant avers that the Claimant did not pursue the issue relating to signing and registration of the impugned draft CBA after 2018. He avers that the Claimant went quiet on the issue only to resurface in 2023 with a demand for remittance of trade union dues. 26. The affiant avers that the last CBA which the parties (Claimant and 1st Respondent) signed ran between May 2015 and April 2017. He avers that the two have not entered into any other CBA thereafter. 27. The affiant asserts that the CBA which the Claimant seeks to enforce expired through effluxion of time. He further asserts that the impugned CBA was never agreed on or signed by the proposed parties to it. As such, he contends that it will be improper for the court to compel the 1 st Respondent to sign the said CBA. CAUSE NO. E777 OF 2025 8

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28. The affiant avers that the 1 st Respondent restructured its business in 2017 after the fire incident by outsourcing noncore activities including the human resource function. He contends that this decision was approved by the Ministry of Labour and Social Protection where-after the 1 st Respondent engaged the 2nd Respondent to provide it (the 1st Respondent) with labour through outsourcing. 29. The affiant contends that the Claimant was made aware of these developments. Despite this, he avers that the Claimant instituted the instant proceeding purporting that the 1st Respondent is the employer of the outsourced staff, a fact which the Claimant allegedly knows to be untrue. 30. The affiant contends that the 1st Respondent, not being the employer of the Claimant’s members, can neither accord the Claimant recognition nor enter into CBA negotiations with it. As such, he avers that this suit is fatally defective. 31. The affiant avers that the Claimant has no locus standi to institute the instant proceedings since it has not satisfied the threshold for recognition under the Labour Relations Act. He contends that despite the Claimant being notified severally that a majority of the 1st Respondent’s workforce are outsourced from the 2nd Respondent, the Claimant has refused to engage the 2nd Respondent over the recognition and CBA negotiations. He contends that the instant proceedings against the 1st Respondent are only intended to frustrate it (the 1st Respondent). As such, he contends that CAUSE NO. E777 OF 2025 9

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the suit against the 1st Respondent does not disclose a reasonable cause of action and should be struck out. 32. The affiant avers that since the 2 nd Respondent is the employer of a majority of the individuals who comprise the membership of the Claimant, the Claimant’s decision to institute proceeding against the 1 st Respondent was without justification. As such, he contends that the suit against the 1st Respondent is bad in law for misjoinder of parties. 33. The 2nd Respondent did not file a response to the 1 st Respondent’s application. However, it filed submissions on the motion in which it contends that on 7 th February 2025, it entered into an outsourcing agreement with the 1 st Respondent pursuant to which, it deployed some employees to render services to the 1st Respondent. It further avers that towards the end of that year, the Claimant served it with pleadings filed in this action demanding that it (the 2 nd Respondent) signs the impugned 2017-2019 CBA. 34. The 2nd Respondent contends that it was not aware of and did not participate in negotiations relating to the impugned draft CBA. Further, it contends that the draft CBA has in any event expired and that the Claimant has not met the prerequisites for recognition. As such, it supports the 1 st Respondent’s plea that the suit be struck out. 35. The Claimant has opposed the application. In summary, it avers as follows:- CAUSE NO. E777 OF 2025 10

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a) That there is a subsisting Recognition Agreement between it and the 1st Respondent. b) That a Recognition Agreement is not automatically invalided if and when a trade union’s membership falls below the statutory threshold. c) That it (the Claimant) has the requisite locus standi to institute these proceedings against the Respondents. d) That its (the Claimant’s) claim for trade union dues and agency fees is well founded in law since by the Respondents entering into the outsourcing agreement, they assumed employer-employee responsibilities over the outsourced employees. e) That the claim relating to the impugned draft CBA falls within the definition of a continuing injury claim and is therefore not time barred. f) That the instant claim was not presented as a recognition dispute because the dispute between the parties is about the failure by the Respondents to conclude the impugned draft CBA. g) That the expected benefits from the impugned draft CBA constitute accrued benefits which cannot be defeated by effluxion of time. 36. The 2nd Respondent has filed a separate application dated 21st October 2025 in which it seeks the following orders:a) That the suit against it (the 2 nd Respondent) be struck out for being incompetent and an abuse of the court process. CAUSE NO. E777 OF 2025 11

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b) That the court finds that there is no employer-employee relationship between the Claimant’s members and the 2 nd Respondent. c) That the court finds that the draft CBA in question is unenforceable as it lapsed even before it was executed. d) That costs of the application and the suit be borne by the Claimant. 37. The application is supported by the grounds which are set out on the face thereof and the affidavit of one Charles N. Waihinya. Essentially, the 2nd Respondent’s contention can be summarized as follows:a) That the 2nd Respondent is an outsourcing company and cannot be considered as a principal employer for purposes of CBA negotiations. b) That the 2nd Respondent has more than 8000 workers deployed to various clients and that the instant dispute relates to only a few of the workers who have been deployed to the 1st Respondent’s site. As such, the Claimant cannot claim to have attained a simple majority of the 2nd Respondent’s workforce. c) That the draft CBA in dispute was, in any event, negotiated between the Claimant and the 1st Respondent and did not involve the 2nd Respondent. d) That at no time during the impugned CBA negotiations did the Claimant and the 1st Respondent disclose the discussions to the 2nd Respondent. As such, it (the 2 nd CAUSE NO. E777 OF 2025 12

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Respondent) cannot be compelled to sign the said draft CBA. e) That the draft CBA, in any event, lapsed before it was signed and is thus incapable of being enforced. f) That impleading the 2nd Respondent into the suit amounts to misjoinder of parties. g) That the instant suit does not disclose a cause of action against the 2nd Respondent. 38. The Claimant has opposed this application as well. It has filed an affidavit dated 9th December 2025 to anchor its response to the motion. 39. The Claimant contends that the Respondents are jointly and severally liable for violation of its (the Claimant’s) members’ rights. As such, it contends that the 2 nd Respondent is a necessary party in the action. 40. The Claimant contends that the question regarding who the actual employer of its members is between the two Respondents is one of the issues which the court is asked to address during trial of the case. As such, it (the Claimant) avers that the 2nd Respondent cannot seek to have the issue determined through an interlocutory application. 41. The Claimant invokes the principle of Dominus Litis to contend that it is the master of its own case. As such, it avers that the law allows it to determine the parties to be joined as defendants in the cause. CAUSE NO. E777 OF 2025 13

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42. On its part, the 1st Respondent filed a replying dated 17th April 2026 in response to the 2nd Respondent’s motion. The affidavit, in large part, reiterates the contents of the 1 st Respondent’s earlier averments in support of its application dated 23rd September 2025. I will therefore not reproduce them here. Analysis 43. The Respondents rely on section 89 (formerly section 90) of the Employment Act to contend that the suit is time barred. They assert that the disagreement between the Claimant and the 1st Respondent over the impugned draft CBA crystalized approximately seven (7) years ago. They further contend that the draft CBA was intended to cover the period between 2017 and 2019. As such, they assert that the instrument has expired and cannot be enforced. Consequently, they pray that the suit be struck out on this account. 44. The Claimant has opposed this request. It contends that the 1st Respondent’s refusal to execute the impugned draft CBA constitutes a continuing injury under section 89 of the Employment Act. It (the Claimant) contends that such cause of action can only become time barred if no suit is filed within twelve months of cessation of the injury. 45. According to the Claimant, the 1 st Respondent’s refusal to sign the impugned draft CBA continues to date. As such, it (the Claimant) contends that the 1st Respondent’s actions CAUSE NO. E777 OF 2025 14

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constitute a continuing injury which had not ceased at the time this suit was filed. Consequently, it contends that the suit is not time barred. 46. Section 89 of the Employment Act provides as follows:‘’Notwithstanding the provisions of section 4(1) of the Limitation of Actions Act (Cap. 22), no civil action or proceedings based or arising out of this Act or a contract of service in general shall lie or be instituted unless it is commenced within three years next after the act, neglect or default complained or in the case of continuing injury or damage within twelve months next after the cessation thereof.’’ 47. Assuming that the aforesaid provision applies to the instant dispute, I would agree with the Claimant’s position (based on the Court of Appeal decision in the case of The German School Society & another v Ohany & another [2023] KECA 894 (KLR)) that its (the Claimant’s) grievance constitutes a continuing injury claim in respect of which litigation can only be time barred after the lapse of twelve months from the date of cessation of the injury that is complained of. In this case, the injury which the Claimant complains about could only cease if the 1 st Respondent signed the impugned CBA. However and as the parties agree, this had not happen by the time this suit was filed. As such, the alleged injury still persists and the Respondents cannot invoke the aforesaid provision to defeat the claim. CAUSE NO. E777 OF 2025 15

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48. That said, it is doubtful that the limitation of actions period provided under section 89 of the Employment Act applies to the dispute between the parties. It is noteworthy that the aforesaid provision specifically deals with limitation of actions in respect of proceedings arising from a contract of employment or proceedings instituted under the Employment Act. 49. The instant dispute does not arise from either a contract of service or the Employment Act. It relates to the right to recognition and the alleged refusal by the 1 st Respondent to sign the disputed draft CBA, matters which are provided for in and fall within the purview of the Labour Relations Act. As such, the Respondents cannot possibly contend that the dispute, not having arisen from a contract of service or under the Employment Act, is debarred by the limitation of actions edict under section 89 of the Employment Act. 50. In their submissions, counsel for the 1 st Respondent assert that the dispute between the parties arises from the Employment Act. This is inaccurate. 51. In expressing the above position, the 1 st Respondent’s lawyers fail to appreciate the conceptual distinction between individual and collective employment law. Individual employment law seeks to govern the rights and obligations between a single employee and their employer. Conversely, collective employment law regulates the relationship between an employer (and employers' organizations) and a CAUSE NO. E777 OF 2025 16

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group of employees represented by a union, focusing on union rights, strikes, and multi-party bargaining. 52. On the one hand, the Employment Act is concerned with individual employment law. On the other hand, the Labour Relations Act regulates collective employment law. 53. It is therefore incorrect to submit that the dispute between the parties is affected by the statutory edict under section 89 of the Employment Act. This is because the dispute is founded on collective employment law which falls within the realm of the Labour Relations Act. 54. The scenario would be different if the terms of the draft CBA had been incorporated into the individual contracts of service of the 1st Respondent’s employees if it (the draft CBA) had crystalized through execution. Once such incorporation is effected, the terms of a CBA become part of the individual contract of service. As such, if there is breach of such terms (which have already been infused into an individual contract of service), then the resultant dispute will be said to arise from a contract of service which will be subject to the provisions of the Employment Act, including section 89 thereof. 55. In this case, the terms of the draft CBA were not infused into the individual contracts of service of the Claimant’s members since it (the draft CBA) did not crystalize through execution by the parties to it. As such, the dispute over it (the draft CBA) remains within the purview of the Labour CAUSE NO. E777 OF 2025 17

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Relations Act and has nothing to do with a contract of service or the Employment Act to justify the Respondents’ attempts to invoke the limitation of actions edict under section 89 thereof. 56. Importantly, a perusal of the Memorandum of Claim leaves no doubt that the Claimant raises grievances relating to alleged breaches of constitutional rights to fair labour practice and freedom of association. It is the Claimant’s case that the Respondents’ refusal to execute the impugned draft CBA has infringed the Claimant’s members’ rights to freedom of association and fair labour practice. 57. The general position in law is that statutes of limitation do not operate to defeat grievances which are founded on alleged breaches of the Constitution. Only the equitable doctrine of laches can be invoked to defeat such claims if it is demonstrated that the delay complained about has been inordinate and unreasonable (Mutai & 9 others v Attorney General [2019] KECA 125 (KLR)). 58. The Respondents’ assertion that the claim is stale is not founded on the equitable doctrine of laches. Rather, it is premised on a statutory provision (section 89 of the Employment Act) which cannot be invoked to defeat the Claimant’s plea regarding violation of constitutional provisions. CAUSE NO. E777 OF 2025 18

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59. The totality of the foresaid analysis leads to the conclusion that the Respondents’ objection to the suit on account of limitation of actions is unmerited. As such, it fails. 60. The other objection which the Respondents raise is that the draft CBA which the Claimant seeks to implement is overtaken by events. As such, it cannot be enforced. On the other hand, the Claimant contends that the draft CBA represents entitlements to its members which have not been effected owing to the 1st Respondent’s refusal to finalize the process. As such, it disputes the fact that the proposed CBA is stale. 61. Whether or not the impugned draft CBA is implementable retroactively if signed is a matter of fact which the court is not able to determine through this interlocutory proceedings. The issue can only be determined after full trial of the case. 62. The Respondents further contend that the suit does not disclose a reasonable cause of action against them because the Claimant has not attained the requisite statutory threshold to be accorded recognition. However and in the court’s view, this contention is misguided. 63. In respect of the 1st Respondent, the parties (Claimant and 1st Respondent) agree that they have a subsisting Recognition Agreement which the 1st Respondent has moved the National Labour Board to revoke. However, there is no evidence that the agreement has been revoked. CAUSE NO. E777 OF 2025 19

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64. The power to revoke a Recognition Agreement vests exclusively in the National Labour Board (see section 54(5) of the Labour Relations Act). 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. Put differently, the mere fact that a trade union’s membership has fallen below the threshold set under section 54(1) of the Labour Relations Act does not operate to automatically revoke a Recognition Agreement between the trade union and the employer (see Micato Safaris v Kenya Game Hunting & Safari Workers Union [2017] KECA 704 (KLR)). As such, the 1st Respondent’s contention that the Claimant has no locus standi to sue because it has lost the threshold for recognition is misplaced. 65. That said, the mere fact that a trade union does not have a Recognition Agreement with an employer does not operate as a bar to the trade union litigating against the employer on behalf of its (the trade union’s) members. A Recognition Agreement is only essential for purposes of collective bargaining (see section 54(1) of the Labour Relations Act and Modern Soap Factory v Kenya Shoe and Leather Workers Union [2020] KECA 4 (KLR)). As such, to contend that the Claimant lacks locus standi to institute these proceedings against the Respondents, jointly and severally, to push for the signing of the impugned draft CBA CAUSE NO. E777 OF 2025 20

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on behalf of its members because of the absence or otherwise of a Recognition Agreement is a misnomer. 66. Finally on this issue, whether or not the Claimant has met the statutory threshold for recognition as urged by the Respondents is a matter of both fact and law to be determined after full trial of the case. It cannot be resolved summarily through interlocutory applications such as the ones the Respondents have filed. The disputants must present evidence on the contrasting positions they take on the matter and be cross examined on it, if at all, in the normal course of a trial to enable the court to arrive at a just conclusion on the subject. It will be unjust to purport to make a conclusive finding on the issue based on untested affidavit evidence presented through an interlocutory application. 67. The Respondents further seek that the suit be struck out for failure to disclose a cause of action. The law on striking out a suit for non-disclosure of a cause of action is set out under Order 2 rule 15 (1) of the Civil Procedure Rules. Rule 15 (2) thereof provides that an application for striking out a pleading for want of disclosure of a cause of action or defense shall not be supported by evidence. 68. In the instant case, it is clear that the Respondents have sought to adduce evidence to support their plea to strike out the suit for failure to disclose a cause of action. A perusal of the affidavits in support of the applications shows that the CAUSE NO. E777 OF 2025 21

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affiants invoke the averments in the affidavits to support the prayer for striking out the claim for non-disclosure of a cause of action, a matter which renders the request untenable for non-compliance with an express provision of law. 69. The Respondents further pray that the suit be struck out for misjoinder of parties. They contend that the 1 st Respondent is not the employer of majority of the Claimant’s members. It is their case that most of these individuals are employees of the 2nd Respondent but deployed to serve the 1 st Respondent under an outsourcing agreement between the Respondents. As such, they contend that the Claimant has wrongly impleaded them in the suit and that the suit should be struck out on this basis. 70. The law does not encourage striking out of suits on account of misjoinder of parties. Speaking to this, Order 1 rule 9 of the Civil Procedure Rules provides as follows‘’No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.’’ 71. As a matter of law, where a litigant is in doubt regarding the individual or entity from whom he is entitled to obtain a remedy, he is allowed to sue all persons and or entities he reasonably believes he has a cause of action against. The CAUSE NO. E777 OF 2025 22

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court will then determine the right parties to the action during trial. 72. This reality is self-evident from Order 1 rule 7 of the Civil Procedure Rules which provides thus:‘’Where the plaintiff is in doubt as to the persons from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.’’ 73. In a bid to support its argument on misjoinder of parties, the 1st Respondent has invoked the doctrine of privity of contract in the law of contract. It avers that there is no privity of contract between it and the individuals the Claimant purports to represent in the cause as they are employees of the 2nd Respondent. As such, it prays that the suit be struck out on this account. 74. However, the court cannot determine whether there is no privity of contract between the members of the Claimant and the 1st Respondent through the interlocutory motions under consideration because this is a matter of fact and law which requires to be interrogated through trial. It is noteworthy that the 1st Respondent admits that some of the individuals who are members of the Claimant are in its (the 1 st Respondent’s) employment whilst others are in the employment of the 2nd Respondent (see for instance paragraph 12 and 13 of the affidavit in support of the CAUSE NO. E777 OF 2025 23

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application dated 23rd September 2025). In the face of this acknowledgment, the court cannot arrive at the conclusion that there was no privity of contract between the 1st Respondent and the entire complement of the Claimant’s members through an interlocutory application without first interrogating the evidence which the parties will tender on the matter during full trial. Indeed, it is noteworthy from the decisions which the 1st Respondent seeks to rely on to anchor its plea of privity of contract that the courts rendered themselves on the question of privity of contract in their final judgments and not through interlocutory rulings. 75. Finally, on the issue of misjoinder of parties, the court agrees with the Claimant’s contention that the principle of dominus litis renders a Claimant or Plaintiff or Petitioner in a civil suit the master of the suit. In this position, the law entitles him (the Claimant or Plaintiff or Petitioner) to decide whom to sue, which legal remedy to seek and whether to settle or even drop his claim. 76. Although a court of law has powers to intervene in the exercise of this power by for instance adding or removing parties to the action, it must exercise restraint in this regard. At the risk of being repetitive, I must emphasize that it is this principle which undergirds the edict in Order 1 rule 7 of the Civil Procedure Rules which grants a Claimant the right to sue various individuals against whom he believes he has a right to seek a remedy if he is in doubt as from whom, CAUSE NO. E777 OF 2025 24

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amongst the various defendants, he is entitled to seek a remedy. 77. Speaking to this in the case of Civicon Limited v Kivuwatt Limited & 2 others [2015] KECA 588 (KLR), the Court of Appeal observed as follows:‘’The general rule of practice is that the plaintiff is “dominus litis.” This means that he is entitled to choose the defendants against whom he wishes to pursue his claim for the relief or remedy he seeks, and that he cannot be compelled to proceed against other persons whom he has no desire to sue.’’ 78. It is thus apparent that the Respondents’ plea to have the suit struck out on account of misjoinder of parties is unmerited. As such, it is declined. 79. The 1st Respondent contends that the suit is frivolous and incompetent because the Claimant cannot ask the court to compel it to sign a CBA whose terms have not been agreed. The 1st Respondent avers that a CBA is like any other contract whose terms must first be agreed before it is executed. According to it (the 1 st Respondent), there can be no compulsion to conclude the process. 80. The court appreciates that CBA negotiations ought to largely be voluntary. However, unlike other contracts, CBAs fall within a space which is substantially regulated by statute. Indeed, this fact is acknowledged by the learned Judge in the case of Social Service League, M.P. Shah Hospital v CAUSE NO. E777 OF 2025 25

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Kenya Union of Institutions Domestic, and Hotels, Educational Allied [2018] KEELRC 1437 (KLR) which Workers the 1st Respondent relies on to contend that CBA negotiations ought to be wholly autonomous. In recognizing this reality, the learned Judge expressed himself on the matter as follows:‘’A collective agreement is a contractual agreement like any other left to party autonomy, save that it is underpinned by specific statutory provisions which if breached would render it or the offending clauses illegal.’’ 81. The law obligates an employer who has a subsisting Recognition Agreement with a trade union to negotiate and finalize CBAs with the trade union. This requirement is selfevident from section 57(1) of the Labour Relations Act which provides as follows:‘’An employer, group of employers or an employers’ organization that has recognized a trade union in accordance with the provisions of this Part shall conclude a collective agreement with the recognized trade union setting out terms and conditions of service for all unionisable employees covered by the recognition agreement.’’ 82. The aforesaid provision imposes a duty on an employer who has a subsisting Recognition Agreement with a trade union to conclude CBA negotiations with the trade union. As noted CAUSE NO. E777 OF 2025 26

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earlier, this process should ideally be voluntary. However, if the employer places unreasonable obstacles in the pathway of the process, the court may compel him to conclude the CBA negotiations. This position was affirmed by the Court of Appeal in the case of Micato Safaris v Kenya Game Hunting & Safari Workers Union [2017] KECA 704 (supra). 83. Thus, if the Claimant is able to demonstrate at the trial that the 1st Respondent’s refusal to execute the impugned CBA has been without valid reason and that it (the 1 st Respondent) has persisted in the refusal, the court will be entitled to compel it (the 1st Respondent) to conclude the exercise. As such, the 1st Respondent’s contention that the suit is incompetent merely because the Claimant is seeking to compel it to sign a CBA whose terms have not been agreed is misplaced. 84. The 2nd Respondent alleges in the affidavit in support of its application that as an outsourcing company, it is not the principal employer of the Claimant’s members. In response, the 1st Respondent has sharply resisted this suggestion and asserted that the 2nd Respondent was the employer of the Claimant’s members. 85. The disagreement between the two Respondents on this issue alone demonstrates that this is not a clear case in which the court should make conclusive findings on the various contested issues based on interlocutory applications. CAUSE NO. E777 OF 2025 27

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As such and in view of these disagreements, the court is reluctant to issue any drastic orders striking out either the cause or the parties from the cause before the matter is considered with the benefit of full evidence tendered on the disputed issues during trial. 86. It is trite that striking out of pleadings is a draconian remedy which should be resorted to only in the clearest of cases and even then as a matter of last resort. Speaking to this in the case of Ahmed & 2 others v Bank of India [2022] KEHC 17067 (KLR), the learned Judge expressed himself as follows:‘’It follows then that the power to strike out a pleading is discretionary. 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.’’ 87. Speaking to the issue on whether the 2 nd Respondent, as an outsourcing company, stands in the position of an employer, the Court of Appeal in the case of Abyssinia Iron & Steel Limited v Kenya Engineering [2016] KECA 510 (KLR), stated that Workers an Union outsourcing company stands in the position of an employer. However, this position can change if it becomes apparent that the consumer of the labour product and the outsourcing company are merely using the outsourcing devise as a cloak CAUSE NO. E777 OF 2025 28

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to evade the employer’s responsibilities under employment law. 88. This reality renders it even more compelling for the court to decide the dispute between the parties after full trial. It is necessary for the court to determine whether the alleged outsourcing arrangement between the Respondents was legitimate or a mere cloak to avoid the obligations imposed on an employer by law. This can only be done through full trial of the case as opposed to interlocutory applications. Conclusion 89. The upshot is that the court finds that the two applications dated 23rd September 2025 and 21st October 2025 are unmerited. 90. As such, they are dismissed. 91. Costs of the applications to abide the outcome of the suit. Dated, signed and delivered on the 25th day of September, 2026 B. O. M. MANANI JUDGE In the presence of: …………….for the Claimant …………….for the 1st Respondent CAUSE NO. E777 OF 2025 29

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…………….for the 2nd Respondent ORDER In light of the directions issued on 12 th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. B. O. M MANANI CAUSE NO. E777 OF 2025 30

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