Kenya Tea Growers Association & another v Kenya Plantation and Agricultural Workers Union [2018] KECA 32 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that employees cannot be reinstated as a temporary measure during a case—reinstatement must wait until the full dispute is heard.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether reinstatement can properly be ordered as an interlocutory measure on an oral application before full hearing of the substantive dispute
- 2.Whether the order of reinstatement made on 17th January 2018 was made without jurisdiction and without a formal application
- 3.Whether the impugned order contravened the appellants' right to fair hearing, pre-empted pending applications, and nullified prior court orders
- 4.Whether the order interfered with the appellants' managerial rights and was against public policy
Key legal issues
#Whether reinstatement may be granted at an interlocutory stage
No. Reinstatement is a discretionary, substantive remedy under section 49 of the Employment Act that must normally be granted only upon full hearing, considering the factors in section 49(4), including employee conduct and practicability.
The Court relied on section 49 and 49(4) of the Employment Act, its own prior decision in Kenya Tea Growers Association, and the interlocutory ruling in Richard Muimo Parsitau. It held that the summary dismissal was a contentious issue requiring judicial determination after a full hearing, so reinstatement could not be ordered provisionally on an oral application.
Whether the impugned reinstatement order was proper given the pending application and prior orders
No. The order was erroneously granted without considering its implications on previous orders and pending proceedings, and it stultified the application dated 17th November 2017 for clarification of the return-to-work order.
Court orders restraining the strike were in force when the dismissals occurred; there was prima facie evidence of summary dismissal pursuant to the CBA and section 44(4) of the Employment Act; and the employers' application for clarification of 'without victimization of any nature' was pending. Reinstating the employees orally pre-empted that application and impeded proper adjudication.
Legal principles established
#- Reinstatement is a substantive remedy under section 49 of the Employment Act, discretionary and governed by the factors in section 49(4); it is not available as an interlocutory or provisional measure and should not be granted on an oral application without a full hearing
Court orders
#- 1.The appeal is allowed with costs to the appellants
- 2.The order dated 17th January, 2018 reinstating the employees unconditionally is set aside
- 3.The oral application for reinstatement is dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC No. 1578 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court
- Consolidated with
- ELRC No. 1576 of 2017, ELRC No. 1579 of 2017, ELRC No. 2078 of 2017, Misc. Application No. 154 of 2017, Misc. Application No. 155 of 2017
Relief refused
#The Union's oral application for reinstatement of 362 employees pending hearing
Reinstatement is a substantive remedy that should not be granted at an interlocutory stage; the summary dismissal was a contentious issue requiring full judicial determination
Costs
The appeal is allowed with costs to the appellants.
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.
we find that the order of reinstatement was improperly made at an interlocutory stage through an oral application and erroneously granted without due consideration of its implication on the previous orders and the pending proceedings
ordinarily reinstatement of an employee is a substantive remedy, not a temporary relief. The law does not contemplate that reinstatement issues (sic) as a provisional measure. It is a remedy that should normally be granted upon the full hearing of the employer, and employee.
(ii) The order dated 17th January, 2018 reinstating the employees unconditionally is set aside. (iii) The oral application for reinstatement is dismissed.
Issues in the judgment
#The judgment refers to Unilever Kenya Limited as '2nd respondent' in describing the 1st appellant's members, whereas Unilever Tea Kenya Limited is the 2nd appellant
Counsel for the respondent is rendered inconsistently as 'Achiando' and 'Achuondo' in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chika v Technical University of Kenya (Cause E259 of 2025) [2025] KEELRC 2432 (KLR)[2025] KEELRC 2432 (KLR)15 Sept 2025followed
- Moffat v Kenya Revenue Authority (Employment and Labour Relations Cause E089 of 2025) [2025] KEELRC 2290 (KLR)[2025] KEELRC 2290 (KLR)31 Jul 2025applied
- Kenya Shipping Clearing & Warehouses Workers Union v Maya Limited (Employment and Labour Relations Cause 898 of 2018) [2024] KEELRC 2773 (KLR)[2024] KEELRC 2773 (KLR)31 Oct 2024applied
Cite this brief
#Cite this brief
Caselaw, "Kenya Tea Growers Association & another v Kenya Plantation and Agricultural Workers Union [2018] KECA 32 (KLR)", Case Analysis (2018). Civil Appeal No. 49 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/32/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.