Kenya Tea Growers Association & another v Kenya Plantation & Agricultural Workers Union [2018] KECA 336 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that employees cannot be reinstated as a temporary measure during a case and that unions must disclose related court proceedings honestly.
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 impugned discretionary decision of the Industrial Court was clearly wrong on account of misdirection by the learned Judge, particularly in ordering reinstatement/resumption of duty at an interlocutory stage
- 2.Whether the Union was guilty of material non-disclosure of the High Court injunction proceedings
- 3.Whether the Industrial Court should have stayed its proceedings pending determination of the constitutional petitions before the High Court
Key legal issues
#Whether reinstatement can be ordered at an interlocutory stage
No; reinstatement is a substantive remedy to be granted only in exceptional circumstances after a full hearing, and the circumstances here (an outstanding High Court order prohibiting the strike notwithstanding which the employees went on strike) militated against such an order at the interlocutory stage.
The court relied on its own decision in Kenya Airways Ltd v Aviation & Allied Workers Union that reinstatement is discretionary and should be ordered only in very exceptional circumstances, and endorsed Rika J's statement that reinstatement is a substantive remedy normally granted upon full hearing. Since a High Court order had prohibited the strike and the Union appeared to have proceeded regardless, the employer could prima facie justify disciplinary measures; had the Judge considered these matters he would have declined the orders.
Material non-disclosure by the Union in seeking the ex parte injunction
The Union made no reference in its memorandum of claim and notice of motion to the pending High Court proceedings; had the Judge considered that, he would have discharged the interim orders and dismissed the Union's application.
The court found that the Union neither disclosed the High Court injunction in its pleadings before the Industrial Court nor appeared to have complied with the 14th October 2010 order. This non-disclosure, together with the outstanding order prohibiting the strike, constituted misdirection entitling the appellate court to interfere with the exercise of discretion by the lower court.
Whether the Industrial Court should have stayed its proceedings pending the constitutional petitions
Instead of a stay, the proper order was to transfer the constitutional petitions to the ELRC and consolidate them with the industrial cause, since the ELRC can determine constitutional issues within its jurisdiction.
The Judge had failed to address the employers' prayers for stay. Noting that both sets of proceedings arose from the same strike notice, and relying on Mugendi v Kenyatta University and JSC v Shollei on the ELRC's constitutional jurisdiction, the court held that transfer and consolidation in the ELRC best served the parties rather than a stay.
Legal principles established
#- Reinstatement is a substantive remedy, not an interlocutory one; it should not be granted as a provisional measure or except in very exceptional circumstances.
- An appellate court will not interfere with a discretionary decision of a lower court unless the judge misdirected himself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or the decision is plainly wrong.
- Where constitutional petitions raising issues within the ELRC's jurisdiction are pending, the appropriate course may be transfer and consolidation in the ELRC rather than a stay, since the ELRC can determine constitutional issues in its area of jurisdiction.
Court orders
#- 1.The orders of the Industrial Court issued on 22nd March 2011 are set aside
- 2.The Union's application dated 21st October 2010 is dismissed with costs to the appellants
- 3.Petition No. 62, 63 and 64 of 2010 are transferred to the ELRC to be consolidated or heard together with ELRC case no. 1281 of 2010
- 4.The employers' application dated 27th October 2010 is declared spent
- 5.The appellants shall have the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Industrial Court of Kenya at Nairobi
- Industrial Cause No. 1281 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Industrial Court under the applicable appellate framework (the judgment does not cite a specific provision)
Relief refused
#Stay of proceedings in the ELRC pending hearing of the constitutional petitions
The court substituted consolidation in the ELRC for a stay, holding the ELRC has jurisdiction over constitutional issues within its area
Costs
The Union's application dated 21st October 2010 dismissed with costs to the appellants; the appellants shall have the costs of this appeal.
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.
The orders of the Industrial Court issued on 22nd March 2011 are hereby set aside and substituted with an order dismissing the Union's application dated 21st October 2010 with costs to the appellants.
the order that commends itself to us is to order that Petition No. 62, 63 and 64 of 2010 be transferred to the ELRC and be consolidated or heard together with ELRC case no. 1281 of 2010.
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.
The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Timothy Odhiambo Otieno v Nairobi Hospital Interested Party Kenya Hospital Association [2019] KEELRC 1252 (KLR)[2019] KEELRC 1252 (KLR)5 Jul 2019followed
Cite this brief
#Cite this brief
Caselaw, "Kenya Tea Growers Association & another v Kenya Plantation & Agricultural Workers Union [2018] KECA 336 (KLR)", Case Analysis (2018). Civil Appeal 258 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/336/eng@2018-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.