Amalgamated Union of Kenya Metal Workers v Shankar Electronics Limited

ELRC Cause No. E064 of 2025 reveals, this is not the first time that they have met in the corridors of this and other courts. 2. Towards the end of May 2025, word reached the Claimant's Coast Region office that the Respondent was undergoing a "transition" with "incoming directors". The Claimant asked for a meeting to deliberate on the matter. The Respondent declined, stating that the matter was still under discussion, that nothing had been finalised, and that there was, at that moment, nothing to discuss. The Claimant escalated the matter to its headquarters, which again sought a meeting. The Respondent declined once more. Convinced that it was being deliberately shut out of negotiations for the sale of the Respondent's business, the Claimant came to this Court. 3. The dispute, therefore, raises a question that is narrow in its framing but significant in its implications: does a trade union have a legally enforceable right to be involved in negotiations by an employer, or by those who own it, for the sale of the business or the change of its directors? Put differently, does the Claimant's claim disclose a cause of action against the Respondent? 2

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ELRC Cause No. E064 of 2025 B. THE CLAIMANT'S CASE 4. By a Memorandum of Claim dated 10th June 2025, brought under a certificate of urgency and expressed to be anchored on Articles 22, 23, 41(1) and 162(2)(a) of the Constitution of Kenya, 2010, section 12 of the Employment and Labour Relations Court Act, 2011, section 49 of the Employment Act, 2007, section 74 of the Labour Relations Act, 2007 and the Employment and Labour Relations Court (Procedure) Rules, 2016, the Claimant framed the issue in dispute as "Refusal by the Respondent to engage the Claimant Union in the negotiations for sale or change of Directors for the Respondent Company." 5. The Claimant pleaded that it had both a valid recognition agreement and a collective bargaining agreement with the Respondent, and that the Respondent was secretly negotiating to sell the company or to change its directors. When the Claimant learned of this, its Mombasa branch office wrote to the Respondent on 26th May 2025 seeking a joint meeting on 29th May 2025. It averred that in response the Respondent admitted to negotiating, but stated that the Claimant could only be briefed after the 3

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ELRC Cause No. E064 of 2025 conclusion of the negotiations. The Claimant posed the question, in its pleading, "when negotiations are concluded, what role are we coming in to play?" 6. The Claimant averred further that its headquarters then wrote to the Respondent on 29th May 2025 seeking that the declined meeting be held on 3rd June 2025, but the Respondent still declined to meet, even though, in the Claimant's view, the negotiations were ongoing. It asserted that it had the right to represent the unionisable employees; that to deny it representation was "highly malicious, suggestive, sinister and with ulterior motive against the employees"; and that the Respondent had acted contrary to Article 41(1) of the Constitution. It pleaded that unless the Court temporarily stopped the Respondent "from continuing with the ongoing Redundancy", the Claimant and its members would suffer irreparable damage, and that the dispute was properly before the Court under section 74 of the Labour Relations Act. 7. The Claimant sought the following reliefs: 4

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ELRC Cause No. E064 of 2025 (a) That the honourable Court do find actions of the Respondent in locking out the Claimant Union from the sale of the business as very malicious, unprocedural, unfair and unlawful; (b) That the honourable Court do enter judgment for the Claimant that the Claimant Union must be involved in the sale negotiations that end up in redundancy of the existing employees; (c) That, subject to section 49(1)(c) of the Employment Act, 2007 and/or any other enabling provision of the law, the Court, having found that the Respondent maliciously, unprocedurally and unfairly locked out the Claimant, do issue an order to the Respondent to pay the grievant employees compensation of twelve months' wages; (d) Costs of the suit; and (e) Any other relief the Court may deem fit. 8. Together with the Memorandum of Claim, the Claimant filed a list of witnesses and a list of documents dated 10th June 2025, comprising: the collective bargaining agreement between the parties (Exhibit 1); the letter from 5

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ELRC Cause No. E064 of 2025 the Claimant's Mombasa branch dated 26th May 2025 (Exhibit 2); the Respondent's email of 28th May 2025 (Exhibit 3); the Claimant's letter dated 29th May 2025 (Exhibit 4); and the Respondent's email of 30th May 2025 (Exhibit 5). 9. On 28th January 2026, the Claimant, now acting through counsel, filed an Amended Memorandum of Claim, a verifying affidavit, a witness statement by its General Secretary, Ms. Rose A. Omamo, and a supplementary list of documents, all dated 28th January 2026. The fate of these documents is addressed later in this judgment. 10. In her witness statement, Ms. Omamo stated that the Respondent had been conducting secretive plans to change its ownership by attempting to sell the company, with the intention, as she put it, of evading its responsibility to satisfy pending judgments and decrees in favour of the unionisable employees, namely those in Mombasa ELRCC No. 521 of 2016 and Mombasa MCELRC No. E227 of 2023. She stated that the Respondent subsequently served the unionisable employees with redundancy notices; that when the Claimant intervened, the Respondent sought an out-of-court settlement; that 6

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ELRC Cause No. E064 of 2025 the Claimant sent a draft consent proposing that all court orders and decrees be satisfied before any redundancy; and that upon seeing the draft, the Respondent cancelled the redundancy notices. She added that the Respondent later announced that its key director was relocating to Nairobi, which, in her view, was a clear indication that the directors were moving out to pave the way for new directors to take over. 11. The supplementary list of documents comprised a draft consent dated correspondence redundancy Respondent's 24th November between letter dated letters counsel; 1st dated 2025; the October 29th email Respondent's 2025; November the 2025 withdrawing the redundancy notices; the Respondent's notice dated 18th December 2025 on the relocation of its head office to Nairobi; a copy of the judgment in Mombasa MCELRC No. E227 of 2023; and a demand letter dated 6th July 2021. C. THE RESPONDENT'S CASE 12. The Respondent filed a Reply to Statement of Claim dated 22nd October 2025. It denied having refused to engage 7

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ELRC Cause No. E064 of 2025 the Claimant in any sale negotiations, asserting that no such negotiations were ongoing or had been finalised. It denied being engaged in any secret or clandestine change of directors, averring that any such change would be evident on its CR 12, which was not the case. It pleaded that, in any event, it is a corporate body with perpetual succession and any change of the kind alleged would not defeat the Claimant's rights. 13. The Respondent averred that the law does not preclude the owner of a company from entering into negotiations for the reconstruction or sale of the company, save that such negotiations cannot be finalised or implemented without taking its employees into consideration. It pleaded that it had not been sold, that it had issued no termination or redundancy notices on account of any sale, that no employee had been sent away from work, and that all employees' wages were fully paid up. 14. The Respondent further pleaded that the suit was premature, since any trade dispute between the parties ought to have been reported to the Minister under section 62 of the Labour Relations Act, and none of the circumstances in which a party may approach the Court 8

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ELRC Cause No. E064 of 2025 directly, namely a refusal to appoint a conciliator, a refusal to recognise the union, retrenchment without notice, essential services, or a declared redundancy, had arisen. It pleaded that its relationship with the Claimant's members is contractual, and any dispute could only arise from a breach of the employment contracts or the collective bargaining agreement, of which there was none. It admitted the jurisdiction of the Court, and prayed that the suit be dismissed with costs. 15. The Respondent filed the witness statement of its director, Mr. Akram Sheikh, dated 20th December 2025. He stated that he had not sold the company to any third party and remained its owner together with his co-shareholders; confirmed that the Respondent has a collective bargaining agreement with the Claimant; confirmed that he received the Claimant's letter alleging that there were new incoming directors and responded that there were no such directors and no agreement for sale; and reiterated that he had reached no agreement with any third party for the sale of the company and had issued no termination letters or notices on that account. He otherwise restated the averments in the Reply. 9

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ELRC Cause No. E064 of 2025 D. THE PROCEDURAL HISTORY 16. A brief account of the procedural history is necessary, for it bears directly on one of the issues raised by the Respondent. 17. On 4th December 2025, the Court directed the parties to file and serve their trial documents in readiness for the hearing, which was fixed for 3rd February 2026. On 28th January 2026, the Claimant filed the Amended Memorandum of Claim, the verifying affidavit, the witness statement and the supplementary list of documents referred to above. 18. When the matter came up for hearing on 3rd February 2026, the Respondent objected to the filings. For clarity of the record, on that day this Court struck out the Amended Memorandum of Claim, as it had been filed without leave of the Court after pleadings had closed. The Court did not strike out or expunge the witness statement or the supplementary list of documents, and no application was made by the Respondent for that purpose. 19. On 3rd March 2026, the parties agreed by consent that the matter be disposed of by way of Rule 59 of the 10

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ELRC Cause No. E064 of 2025 Employment and Labour Relations Court (Procedure) Rules, 2024, on the basis of the pleadings, the witness statements and documents on record, and written submissions. E. THE SUBMISSIONS 20. The Respondent filed written submissions dated 20th April 2026, identifying three issues for determination: whether the Claimant's failure to file a witness statement is fatal; whether the suit is speculative and premature; and whether the Claimant's members stand to be prejudiced. 21. On the first issue, the Respondent submitted that the Claimant's list of documents dated 10th June 2025 is not tethered to any witness statement, contrary to Rule 7 of the Employment and Labour Relations Court (Procedure) Rules, 2024 and Order 3 Rule 2 of the Civil Procedure Rules. It contended that the witness statement dated 28th January 2026 had been withdrawn together with the Amended Memorandum of Claim, and expunged from the record, leaving the Claimant without a witness statement. Relying on Eshiwani v Kenyatta University [2024] KEELRC 958 (KLR) and Madalina Wambui Marete (Suing as 11

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ELRC Cause No. E064 of 2025 Administratrix of the Estate of Cosmas Marete (Deceased)) & another v Julius Kigutu [2015] KEHC 1257 (KLR), it submitted that the requirement to file a witness statement is a legal requirement and not a mere technicality, that the Claimant could not invoke the overriding objective, and that the list of documents dated 10th June 2025 and the documents therein ought to be expunged. 22. On the second issue, the Respondent submitted, relying on section 107(1) of the Evidence Act and Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & another [2005] 1 EA 334, that the Claimant had tendered no evidence in support of its allegations. It contended that the suit was founded on speculation and conjecture and was not ripe for adjudication, citing Munga v Kenya Maritime Authority & another [2024] KEELRC 2740 (KLR). It further submitted that the Claimant had failed to exhaust the conciliation mechanism under section 62 of the Labour Relations Act, and that the dispute did not fall within any of the exceptions in section 74. Reliance was placed on Speaker of the National Assembly v Karume [1992] KECA 42 (KLR) and Simon v Kenya National Union of Nurses and Midwives & another; Registrar of Trade Unions & another (Interested 12

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ELRC Cause No. E064 of 2025 Parties) [2026] KEELRC 363 (KLR), for the proposition that the Court lacks jurisdiction where a statutory dispute resolution mechanism has not been exhausted. 23. On the third issue, the Respondent submitted that, in any event, it is a body corporate with perpetual succession under the Companies Act, 2015, and that a change of directors or obligations shareholders under its does contracts not of extinguish service with its the Claimant's members. It relied on Julius Waweru v Engen Kenya Limited [2019] KEELRC 883 (KLR). F. ISSUES FOR DETERMINATION 24. I have carefully considered the pleadings, the witness statements, the submissions. The documents following on record issues and the emerge for determination: (i) Whether the Claimant's witness statement and documents are properly on record; (ii) Whether the suit is barred by reason of the Claimant's failure to exhaust the conciliation mechanism under section 62 of the Labour Relations Act; 13

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ELRC Cause No. E064 of 2025 (iii) Whether the Memorandum of Claim discloses a cause of action against the Respondent; and (iv) Whether the Claimant is entitled to the reliefs sought, and who should bear the costs of the suit. G. ANALYSIS AND DETERMINATION Issue (i): Whether the Claimant's witness statement and documents are properly on record 25. It is necessary, at the outset, to set out clearly what remains of the Claimant's case. The Amended Memorandum of Claim dated 28th January 2026 was struck out on 3rd February 2026, having been filed after the close of pleadings without leave of the Court. The pleading on which the Claimant's case stands, and on which it must be determined, is therefore the Memorandum of Claim dated 10th June 2025. 26. The Respondent's submissions proceed on the footing that the Claimant withdrew its witness statement and supplementary list of documents on 3rd February 2026, and that the same were expunged from the record. With respect, that is not an accurate account of the record. What the Court struck out was the Amended Memorandum 14

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ELRC Cause No. E064 of 2025 of Claim. The witness statement and the supplementary list of documents were not expunged. The Respondent did not, on that date or at any time thereafter, move the Court to expunge them. 27. More fundamentally, on 3rd March 2026, with the record as it then stood, the Respondent consented to the matter being determined under Rule 59 of this Court's Procedure Rules, on the basis of the documents on record and written submissions. Section 120 of the Evidence Act provides that when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. 28. A party who, with full knowledge of the state of the record, consents to a mode of disposal premised on the documents then on record, and thereby leads the Court and its adversary to proceed on that basis, cannot, at the stage of submissions, turn around and impeach the propriety of the filing of the very documents upon which it 15

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ELRC Cause No. E064 of 2025 agreed the matter would be determined. The Claimant was entitled to, and did, proceed to written submissions on the understanding that its witness statement and documents formed part of the material before the Court. The Respondent is, in my view, estopped from raising any impropriety in the filing of the witness statement and the supplementary list of documents. 29. I would add that the decision in Eshiwani v Kenyatta University (supra), on which the Respondent relies, itself recognises that the Rules of this Court allow it, in appropriate cases, to render a decision on the basis of witness statements and documents filed by the parties, without taking oral testimony. That is precisely the course the parties chose by consent. And as to the documents filed with the Memorandum of Claim, these comprise the collective bargaining exchanged between agreement the and parties correspondence themselves. The Respondent has not questioned their authenticity. Its own director confirms the existence of the collective bargaining agreement and the receipt of the Claimant's letter. An invitation, made for the first time in written submissions, to expunge such documents, would elevate form over 16

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ELRC Cause No. E064 of 2025 substance, contrary to Article 159(2)(d) of the Constitution and the principal objective of this Court under section 3 of the Employment and Labour Relations Court Act, 2011. The invitation is declined. 30. There is, however, an important caveat. A witness statement is evidence; it is not a pleading. Its office is to prove the facts pleaded, not to introduce new ones. It is settled that parties are bound by their pleadings, and that evidence which is at variance with, or goes beyond, the pleadings goes to no issue and must be disregarded. See Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR. A considerable part of Ms. Omamo's witness statement, and of the supplementary list of documents, concerns matters that were introduced by the Amended Memorandum of Claim, which has been struck out: the alleged non-satisfaction of the decrees in Mombasa ELRCC No. 521 of 2016 and Mombasa MCELRC No. E227 of 2023, the redundancy notices of 1st October 2025 and their withdrawal on 29th November 2025, and the relocation of the Respondent's head office. These matters did not form part of the pleaded case. The 17

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ELRC Cause No. E064 of 2025 Claimant cannot achieve through its witness statement what it could not achieve through its struck-out amendment. The Court will, accordingly, consider the witness statement and the documents only to the extent that they bear on the case pleaded in the Memorandum of Claim dated 10th June 2025. 31. Subject to that caveat, I find that the Claimant's witness statement and documents are properly on record. Issue (ii): Whether the suit is barred for failure to exhaust the conciliation mechanism 32. The Respondent contends that this Court lacks jurisdiction because the Claimant did not report a trade dispute to the Minister under section 62 of the Labour Relations Act, and the dispute falls within none of the exceptions in section 74 of that Act. Jurisdiction being the very foundation upon which a court acts, the question must be answered before the merits are considered. See Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1. 33. I have considered the objection and I am not persuaded that it goes to jurisdiction in the strict sense. Article 162(2) 18

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ELRC Cause No. E064 of 2025 (a) of the Constitution and section 12 of the Employment and Labour Relations Court Act vest in this Court jurisdiction to hear and determine disputes relating to employment and labour relations, including disputes between a trade union and an employer. The doctrine of exhaustion, as the very passage from William Odhiambo Ramogi & 3 others v Attorney General & 4 others (2020) eKLR relied on by the Respondent makes plain, is concerned with the "postponement of judicial consideration" of a matter, so that a party first pursues the mechanisms provided outside the courts. It is a doctrine of restraint and timing; it does not strip the Court of the jurisdiction the Constitution and statute confer upon it. It is telling that the Respondent, in paragraph 13 of its Reply, expressly admitted the jurisdiction of this Court. 34. Further, the Respondent did not take the objection at the threshold, by way of a preliminary objection or an application. It participated in the proceedings and consented to the matter being determined on its merits under Rule 59. To down tools at this stage, and to direct the parties to conciliation over a claim that can be fully determined on the material before the Court, would serve 19

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ELRC Cause No. E064 of 2025 no useful purpose and would be inconsistent with the principal objective of this Court. I therefore decline to dismiss the suit on this ground. Issue (iii): Whether the Memorandum of Claim discloses a cause of action against the Respondent 35. This is the pivotal issue in this suit. What, then, is a cause of action? In Letang v Cooper [1965] 1 QB 232, Diplock LJ described it thus: "A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person." 36. In Read v Brown (1888) 22 QBD 128, Lord Esher MR defined it as every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. 37. From these authorities, it is clear that a cause of action has two essential components. First, there must be a legal right vested in the claimant, or, conversely, a legal duty owed to it by the respondent. Second, there must be a violation, or a real threat of violation, of that right or a breach of that duty by the respondent. Where there is no 20

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ELRC Cause No. E064 of 2025 right, there can be no wrong; and where there is no wrong, the Court has no remedy to give. The inquiry, therefore, must begin by identifying the right the Claimant asserts, and locating its source, whether in the Constitution, in statute, in the collective bargaining agreement, or in the recognition agreement. 38. The right the Claimant asserts is the right to be engaged in, and to participate in, the negotiations for the sale of the Respondent company or the change of its directors. To determine whether such a right exists, it is necessary to consider the purpose of trade unionism and the duties the law places upon an employer in its relationship with a trade union. 39. Trade unions emerged, historically, as a response to the inherent inequality of bargaining power between the individual worker and the employer. Alone, a worker has little leverage over the terms upon which he is engaged. By combining, workers acquire a collective voice and a collective strength with which to negotiate wages and conditions of service, to protect their members from arbitrary treatment, and to represent them in grievances, in disciplinary processes and in redundancies. It is this 21

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ELRC Cause No. E064 of 2025 purpose that the Constitution protects. Article 41(2)(c) guarantees every worker the right to form, join or participate in the activities and programmes of a trade union. Article 41(4) guarantees every trade union the right to determine its own administration, programmes and activities, to organise, and to form and join a federation. Article 41(5) guarantees every trade union, employers' organisation and employer the right to engage in collective bargaining. Section 2 of the Labour Relations Act, consistently, defines a trade union as an association of employees whose principal purpose is to regulate relations between employees and employers. 40. The locus of trade union activity is thus the employment relationship: the terms and conditions of service of the unionisable employees, their welfare at the workplace, and the fair treatment of each of them by the employer. A trade union is the collective voice of the employees in their relationship with the employer. It is not a partner in the employer's enterprise, nor a co-owner of its business. The purpose of trade unionism does not, in my view, extend to the union being involved in the commercial transactions of the employer. The sale of the employer's 22

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ELRC Cause No. E064 of 2025 business, the transfer of shares in it, and the appointment or change of its directors are matters of ownership and corporate governance. Companies Act, They 2015, the are regulated company's by the articles of association and the law of contract, and they fall within the province of the company's shareholders and its board. The right to acquire and dispose of property, including shares in a company, is itself protected by Article 40 of the Constitution. 41. What, then, are the duties an employer owes to a trade union? In brief, and without purporting to be exhaustive, the law requires an employer: to respect the right of its employees to join and participate in the activities of a trade union, and not to victimise them for doing so; to recognise a trade union that represents a simple majority of its unionisable employees, as section 54 of the Labour Relations Act provides; to deduct and remit trade union dues in accordance with section 48 of that Act; to negotiate in good faith and conclude a collective agreement setting out the terms and conditions of service of the unionisable employees, as contemplated by section 57; to observe and implement the collective agreement, 23

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ELRC Cause No. E064 of 2025 which binds it; to afford the union and its officials the facilities and access provided for in the recognition agreement; and, where it contemplates declaring any of its unionisable employees redundant, to notify the union and the labour officer of the reasons for, and the extent of, the intended redundancy not less than one month before the date of the intended redundancy, as section 40(1)(a) of the Employment Act requires, and to consult meaningfully with the union on it. The importance of such consultation in redundancy was underscored by the Court of Appeal in Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 others [2014] eKLR. 42. None of these duties translates into an obligation upon an employer, or upon its shareholders, to invite a trade union to the table where the sale of the business or a change of directors is being negotiated. I have scrutinised the collective bargaining agreement produced by the Claimant as Exhibit 1. It regulates hours of work, overtime, leave, allowances, discipline, termination, redundancy, retirement and wages. It contains no clause that confers on the Claimant a right to be consulted on, or to participate in, any transaction for the sale of the 24

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ELRC Cause No. E064 of 2025 Respondent or the change of its directors. The only provision in it touching on the Respondent informing the Claimant of a matter affecting the continuity of employment is clause 18, which, in terms that mirror section 40 of the Employment Act, obliges the Respondent to inform the Claimant and the labour department of an intention to declare employees redundant. No recognition agreement was produced to demonstrate any other right. 43. It must also be borne in mind that the Respondent is a body corporate, distinct from its shareholders and directors, and endowed with perpetual succession. See Salomon v A Salomon & Co Ltd [1897] AC 22. The employer of the Claimant's members is the company, not its directors or shareholders. As was observed in Julius Waweru v Engen Kenya Limited (supra), a change of shareholders does not per se affect the legal status of the company, nor extinguish its legal rights and obligations. It follows that a change of directors, or a transfer of shares in the Respondent, would leave the contracts of employment of the Claimant's members, the collective bargaining agreement, and the Respondent's obligations under them, wholly intact. The Claimant's anxiety, in so 25

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ELRC Cause No. E064 of 2025 far as it concerns the existing rights of its members, is not well-founded in law. 44. This is not to say that the law leaves employees and their union without protection where a commercial transaction threatens their jobs. It does not. Where a sale or restructuring leads the employer to contemplate the termination of employment on account of redundancy, section 40 of the Employment Act and clause 18 of the collective bargaining agreement are engaged. The Claimant's right to be notified and consulted then crystallises, and it is enforceable. But that right is triggered employees by the employer's redundant, not intention by the to declare existence of negotiations over the ownership or management of the business. The law protects the employees' jobs and terms; it does not make the union a party to the employer's commercial dealings. 45. The right to fair labour practices is a right exercised within the employment relationship. information about commercial A refusal to negotiations can share only amount to an unfair labour practice where the employer is under a duty to share it. I have found that there is no such 26

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ELRC Cause No. E064 of 2025 duty. I would also observe that the Claimant's characterisation of the Respondent's conduct as a "lockout" is inapt. In labour law, a lock-out connotes an employer's exclusion of its employees from their work, or its refusal to continue to employ them, in furtherance of a dispute, and with a view to compelling them to accept its demands. Nothing of the sort is alleged, let alone proved. 46. In any event, the extent to which the Claimant wishes to be involved in the negotiations between the intended purchaser of the business and the Respondent is not clear. The Claimant does not say whether it seeks to attend as an observer, to be consulted, to be informed of the terms, to be a signatory to the transaction, or to have a say in its outcome. Indeed, the Claimant itself poses the question in its pleading, "when negotiations are concluded, what role are we coming in to play?", and leaves it unanswered. A court does not issue orders in vague and indeterminate terms. An order must be precise, so that the party bound by it knows exactly what it is required to do and the Court can determine whether it has been obeyed. An order that the Claimant "must be involved" in the sale negotiations would be incapable of precise compliance or enforcement, 27

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ELRC Cause No. E064 of 2025 and would place the Court in the position of supervising a private commercial transaction, a role that is neither the Court's nor the Claimant's. 47. It is for all these reasons that I find and hold that the Memorandum of Claim does not disclose a cause of action against the Respondent. The Claimant has not demonstrated the existence of the right it asserts, and, there being no right, there could be no breach. Issue (iv): Whether the Claimant is entitled to the reliefs sought 48. Having found that no cause of action is disclosed, it follows that the reliefs sought cannot be granted. I will, nevertheless, say a word on each of them. 49. Prayer (a) seeks a finding that the Respondent's actions in "locking out" the Claimant from the sale of the business were malicious, unprocedural, unfair and unlawful. The Claimant has not established that the Respondent was under any duty to involve it in the alleged negotiations, or that the Respondent acted maliciously or unlawfully in declining the meetings. The declaration cannot issue. 28

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ELRC Cause No. E064 of 2025 50. Prayer (b) seeks an order that the Claimant must be involved in the sale negotiations. For the reasons I have given, there is no legal basis for such an order, and in any event its content is so indeterminate that it would be incapable of compliance or enforcement. It is declined. 51. Prayer (c) is, with respect, surprising. The Claimant seeks compensation of twelve months' wages for the "grievant employees" under section 49(1)(c) of the Employment Act. Section 49 provides the remedies available for wrongful dismissal and unfair termination of employment. The compensation under section 49(1)(c) is available to an employee whose employment has been terminated and whose termination the Court has found to be unfair. It presupposes, therefore, an employee, a termination of that employee's employment, and a finding that the termination was unfair. None of these is present. The Claimant is a trade union; it is not an employee of the Respondent, and it has not been terminated, unlawfully or at all. No employee of the Respondent is shown to have been terminated. The "grievant employees" are not named, and their wages are not pleaded. A refusal to hold a meeting with a trade union is not a termination of 29

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ELRC Cause No. E064 of 2025 anyone's employment. The prayer is misconceived and is declined. 52. On costs, the award of costs is at the discretion of the Court, to be exercised judiciously. Whereas costs ordinarily follow the event, this is a dispute between a trade union and an employer who remain bound in a continuing relationship through a recognition agreement and a collective bargaining agreement. The Court must be mindful that an order of costs in such a dispute may do little to foster the harmonious industrial relations that the law seeks to promote. In the circumstances, I consider it just that each party bears its own costs. H. DISPOSITION 53. In the upshot, I make the following orders: (a) The Claimant's Memorandum of Claim dated 10th June 2025 does not disclose a cause of action against the Respondent. The Claimant's claim lacks merit, and it is hereby dismissed; and (b) Each party shall bear its own costs of the suit. 54. It is so ordered. 30

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ELRC Cause No. E064 of 2025 DATED, SIGNED AND DELIVERED AT MOMBASA THIS 30th DAY OF SEPTEMBER 2026. OCHARO KEBIRA JUDGE 31

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