Brookside Dairy Limited v Attorney General & 2 others [2017] KECA 154 (KLR)
The bottom line
#Brookside Dairy lost its appeal because it couldn't prove a court stay order was ever served on the Industrial Court handling its workers' union dispute.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Judge of the Industrial Court had jurisdiction to continue hearing the Union's claim while there was a consent order staying proceedings in High Court Petition No. 13 of 2010
- 2.Whether the appellant was denied a constitutional right to a fair hearing, freedom of association and freedom of contract by the Industrial Court's award
Key legal issues
#Jurisdiction of the Industrial Court in the face of a consent stay order
Without evidence of service of the stay order on the Industrial Court, the Judge was not deprived of jurisdiction and no finding of breach of the order can be made
The record contained no pleadings or proceedings from High Court Petition No. 13 of 2010, no affidavit of service, and not even the Industrial Court proceedings. Counsel was hard pressed to show the order was brought to the Industrial Court's attention. A party alleging breach of a stay must provide the evidence enabling proof of that fact; absent such proof, the industrial dispute remained within the Industrial Court's jurisdiction.
Alleged denial of the right to a fair hearing and freedoms of association and contract
The appellant was accorded a hearing; the Industrial Court's adverse factual findings on union membership do not constitute a constitutional violation
The appellant's Human Resource Manager testified and produced documents considered by the Industrial Court judge, who saw and heard the witness. The dispute was an ordinary factual dispute between a union and employer about whether a simple majority was recruited, not a matter of constitutional interpretation. The High Court judges correctly found no breach of fundamental rights.
Right to a hearing as a constitutional protection
The right to a hearing is fundamental and well protected, but it was not violated on these facts
Citing Richard Ncharpi Leiyagu v IEBC, the court reaffirmed that the right to a hearing is the cornerstone of the rule of law, and even inherent powers to dismiss suits must be exercised proportionately. However, the appellant was heard through its witness and submissions, so no infringement arose.
Legal principles established
#- A party alleging that proceedings before a superior court were stayed and disregarded must tender evidence, including proof of service of the order on the court seized of the proceedings, before a finding of breach can be made
- A trial court's disagreement with a party's factual evidence and its conclusions from the analysis of that evidence do not amount to a denial of the right to a hearing
- In civil cases, a party who wishes the court to declare a legal right dependent on a particular fact bears a legal obligation to present all evidence reasonably available on the litigated factual issue
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the 3rd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Petition No. 33 of 2011
- Jurisdiction invoked
- First appellate jurisdiction over the High Court's dismissal of a constitutional petition (Court of Appeal Rules; the judgment does not cite a specific Article for its own jurisdiction)
Relief refused
#Setting aside the High Court judgment dismissing the constitutional petition and allowing the petition
The appeal lacked merit; no violation of fundamental rights was demonstrated and there was no evidence the Industrial Court was served with the stay order
Costs
Costs to the 3rd respondents; the 1st and 2nd respondents did not participate in the hearing of the appeal and received no costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the aforesaid reasons we find no merit in this appeal, consequently we order it dismissed with costs to the 3rd respondents as the 1st and 2nd respondent did not participate in the hearing of the appeal.
we cannot say the Judge of the Industrial Court had no jurisdiction to determine the claim that involved a dispute between a union of workers and the employer as there is no evidence to show the Judge was served with an order from a Superior Court staying the proceedings
The fact that the Judge did not agree with the appellants contention regarding the Union's claim that it had recruited a simple majority does not amount to denial of a hearing
in civil cases, it is trite that a party who wishes the court to give a judgment or to declare any legal right dependent on a particular fact or set of facts, that party has a legal obligation to provide evidence that will best facilitate the proof of the existence of those facts
The right to a hearing has always been a well-protected one in our Constitution and is also the cornerstone of the rule of law
Issues in the judgment
#The judgment states at one point that the appellant's witness gave the workforce as 1688 employees, while the Industrial Court award's operative finding recites 1493 total employees with 838 recruited; the record contains both figures without reconciliation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Brookside Dairy Limited v Attorney General & 2 others [2017] KECA 154 (KLR)", Case Analysis (2017). Civil Appeal No. 257 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/154/eng@2017-12-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.