Included with active premium membership. See premium plans · Sign in
Selected passages from the judgment. Follow each paragraph link to read the full context.
The Claimant instituted this claim against the Respondents alleging that they were undertaking transfers of unionisable members of staff under an outsourcing arrangement in contravention of the law and the Collective Bargaining Agreement (CBA) dated 25th January 2024 between the Claimant and the 1st Respondent. It is the Claimant’s case that the Respondents’ actions are an infringement of the rights of the affected members of staff. It…
Paragraph 1 →The upshot is that the court finds that the application dated 11th May 2026 is not merited.
Paragraph 26 →Whether the Employment and Labour Relations Court lacked jurisdiction because the grievants’ monthly salaries were below Ksh. 80,000; whether the claim was res judicata or sub judice in light of ELRC Cause No. E693 of 2024 and Civil Appeal No. E563 of 2025;…
The Union alleged that, around 1 February 2024, the Respondents transferred unionisable employees from Capwell Industries Limited to Consolidated Human Resource Solutions under an outsourcing arrangement. It said this circumvented the CBA of 25 January 2024,…
Get the complete brief with membership →REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI
ELRC CAUSE NO E769 OF 2025
BAKERY CONFECTIONERY FOOD MANUFACTURING WORKERS UNION........…………………………………………….…………. CLAIMANT
VERSUS
CAPWELL INDUSTRIES LIMITED...…………...…...…1ST RESPONDENT
CONSOLIDATED HUMAN RESOURCE SOLUTIONS………………………………………….........2ND RESPONDENT
RULING
Background
1. The Claimant instituted this claim against the Respondents alleging that they were undertaking transfers of unionisable members of staff under an outsourcing arrangement in contravention of the law and the Collective Bargaining Agreement (CBA) dated 25th January 2024 between the Claimant and the 1st Respondent. It is the Claimant’s case that the Respondents’ actions are an infringement of the rights of the affected members of staff. It (the Claimant) further avers that the impugned actions are tantamount to unlawful termination of the employees’ respective contracts of service.
2. The Claimant alleges that the aforesaid CBA, inter alia, provides for conversion of contracts of service for employees who are serving on casual terms to indefinite term contracts. It (the Claimant) contends that instead of the 1st Respondent effecting the aforesaid conversions as dictated by CBA, it entered into an arrangement with the 2nd Respondent pursuant to which it (the 1st Respondent) begun to transfer the affected employees to the 2nd Respondent.
3. The Claimant asserts that the 1st Respondent transferred the affected employees to the 2nd Respondent without first issuing them with notices to terminate their existing contracts of service. As such, it (the Claimant) contends that the transfers are illegal and violate the employees’ right to fair labour practices under article 41 of the Constitution.
4. The Claimant alleges that the impugned transfers caused the affected members of staff to be deployed to the 2nd Respondent on inferior terms and without payment of their accrued terminal benefits. It further contends that the 2nd Respondent begun to remunerate the employees in question on its (the 2nd Respondent’s) terms without regard for their core roles.
5. The Claimant also alleges that after the 1st Respondent transferred the employees under reference, it stopped remitting trade union dues on their behalf. It contends that the 1st Respondent’s aforesaid decision breached sections 48 and 49 of the Labour Relations Act.
6. Although the Claimant has not specified the date of the impugned transfer in the Memorandum of Claim, paragraph five (5) of the witness statement by one Jackson Kisokon Ole Njoroge in support of the claim states that they (the transfers) occurred on or about 1st February 2024. As such, the cause of action in the suit is deemed to have accrued on 1st February 2024.
7. From the aforesaid pleadings, it is apparent that the cause of action in the suit, which is said to have arisen on 1st February 2024, relates to the propriety of the alleged outsourcing of the affected members of staff between the Respondents. The Claimant’s case cannot be stretched beyond these boundaries without first amending the pleadings.
8. On being served with the Memorandum of Claim, the 1st Respondent filed the application dated 11th May 2026 which seeks, inter alia, the following orders: -
a) An order to strike out the suit for want of jurisdiction.
b) An order to strike out the suit on the ground that it is res-judicata.
c) An order to stay and or strike out the suit on the ground that it is sub-judice.
d) An order to strike out the suit for being an abuse of the court process.
9. The application is premised on the grounds appearing on the face thereof. It is further supported by the affidavit sworn by one Peninah Chepkorir (the affiant).
10. The affiant avers that the monthly salary of each of the Grievants falls below the threshold which is set by Legal Notice No. 6024 of 2018. As such, she contends that the suit should have been filed before the Chief Magistrate’s court.
11. The affiant further avers that the Claimant had initially instituted ELRC Cause No. E693 of 2024 against the 1st Respondent. She contends that the issues which are raised in this suit were or ought to have been the subject of litigation in the aforesaid suit.
12. The affiant contends that ELRC Cause No. E693 of 2024 was heard and determined on the merits through the court’s judgment dated 19th June 2025. As such, she asserts that this suit is res-judicata.
13. The affiant alternately contends that the suit is sub-judice. She avers that the 1st Respondent preferred Civil Appeal No E563 of 2025 against the decision of the trial court in ELRC Cause No. E693 of 2024 which is pending determination.
14. The affiant thus contends that prosecution of the instant suit is likely to result in a decision which may conflict with the decision of the trial court in ELRC Cause No. E693 of 2024 or the Court of Appeal in Civil Appeal No. E563 of 2025. As such, she prays that the suit be either struck out or stayed.
15. The affiant avers that the suit is an abuse of the court process. She avers that the court is empowered to strike out such proceedings.
Analysis
16. The 1st Respondent contends that the monthly salaries for the respective employees involved in the action fall below the threshold set by Legal Notice No. 6024 of 2018. As such, it contends that the court has no jurisdiction over the matter.
17. The jurisdiction of this court is provided for in article 162 of the Constitution read together with section 12 of the Employment and Labour Relations Court Act. These provisions leave no doubt in the court’s mind that it enjoys unlimited jurisdiction over all employment and labour disputes irrespective of their pecuniary value.
18. It is correct as the 1st Respondent avers that Legal Notice No. 6024 of 2018 empowers a Magistrates Court’s to handle employment disputes where the employee’s monthly salary is up to Ksh. 80,000.00. However, it (the Legal Notice) does not take away this court’s original jurisdiction over the same matters. In effect therefore, the court retains jurisdiction over the matters.
19. The aforesaid reality has been affirmed through judicial precedent. For instance, in Nyambu v Fanaka [2026] KEELRC 82 (KLR), the court rejected an objection to its jurisdiction to entertain a claim where the employee’s salary was below Ksh. 80,000.00. The trial Judge emphasized that the aforesaid Legal Notice did not take away the court’s jurisdiction over the matter.
20. That said, the best practice is to let the Magistrate’s Court to handle disputes where an employee’s monthly salary is below the threshold prescribed by the Legal Notice. This ensures uniformity in the application of the notice and also ensures that the notice is not rendered moribund.
21. The foresaid notwithstanding, it is important to note that the aforesaid Legal Notice specifically precludes Magistrate’s Courts from handling trade disputes that are anchored on the provisions of the Labour Relations Act. Although it is not a settled position, the general thinking is that trade disputes initiated by a Trade Union fall in this category. As such, they (the disputes) are excluded from the Magistrate’s Court (see Public Transport Operations Union v Solex Motors Limited (Cause E571 of 2023) [2025] KEELRC 3645 (KLR) (15 December 2025) (Ruling)).
22. Regarding whether the claim is res judicata or sub judice, the court has perused the judgment in ELRC Cause No. E693 of 2024 and come to the conclusion that it is not. As mentioned earlier, a perusal of the pleadings in the instant cause reveals that the dispute between the parties relates to the legality of the Respondents’ decision of 1st February 2024 to enter into an outsourcing arrangement. On the other hand, the dispute in ELRC Cause No. E693 of 2024 was about the legality of the 1st Respondent’s decision to terminate the contracts of service of some employees vide its notices of termination dated 8th August 2024.
23. It is true that the two disputes appear to be tied to the CBA dated 25th January 2024. However, they raise different questions of fact and law.
24. The question which was raised in ELRC Cause No. E693 of 2024 was whether it was proper for the 1st Respondent to issue the affected employees the notices of termination of their contracts of service dated 8th August 2024 in view of the requirement in the CBA to convert their (the employees’) contracts into indefinite term. On the other hand, the question in this suit is whether it was proper for the Respondents to enter into an outsourcing arrangement on 1st February 2024 to transfer the services of the affected members of staff despite the requirement in the CBA to convert their (the employees’) contracts into indefinite term contracts. As long as the two suits do not relate to the same Grievants as indeed both parties confirm, they are neither sub judice nor res judicata.
25. The 1st Respondent’s contention that the suit is an abuse of the court process is premised on the contention that it (the suit) was filed in a court without jurisdiction and that it (the suit) is either res judicata or sub judice. However, these arguments have been rejected by the court with the consequence that the contention that the suit is an abuse of the court process also fails.
Determination
26. The upshot is that the court finds that the application dated 11th May 2026 is not merited.
27. It is thus dismissed.
28. Costs of the application to abide the outcome of the suit.
Dated, signed and delivered on the 12th day of November, 2026
B. O. M. MANANI
JUDGE
In the presence of:
……………. for the Claimant
……………. for the 1st Respondent
…………… for the 2nd Respondent
ORDER
In light of the directions issued on 12th 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