Khetia Drapers Limited v Kenya Union of Commercial Food and Allied Workers [2018] KECA 792 (KLR)

Court of Appeal

1 March 2018

EGE. M. Githinji HOHannah Okwengu JMJ. Mohammed

1,123 words in judgment

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The bottom line

Kenya's Court of Appeal confirmed judges cannot make orders nobody asked for without hearing both sides — the order against Khetia Drapers was set aside.

What this practically means

Executive summary

This is a judgment of the Court of Appeal at Eldoret (Githinji, Okwengu and Mohammed, JJ.A) allowing an appeal by Khetia Drapers Limited against a ruling of the Employment and Labour Relations Court at Kisumu (Onyango, J) dated 29th March 2017. The impugned order directed the employer to commence deductions of union dues of all employees in its payroll with effect from April 2017, while leaving the recognition agreement issue for later determination. The appeal was confined to the legality of that order, not its merits. The Court found that the Union's application was contested and that, when the Union's representative indicated he would seek an adjournment on account of late service of the appellant's replying affidavit, the learned judge made the order on her own initiative, without it being sought by any party and without reasons. The Court held that these were adversarial proceedings in which the appellant was entitled to a fair hearing under Article 50(1) of the Constitution, and that the order was irregular and made in excess of jurisdiction. It further held, following Olive Mwihaki Mugenda & Another v Okiya Omtata Okoiti, that it is irregular to grant orders at an interlocutory stage which effectively dispose of a major relief before the parties are heard, and that in the absence of reasons the judge's discretion was not exercised judicially. The appeal was allowed with costs; the order of 29th March 2017 was set aside and the application remitted to the trial court for inter partes hearing if the Union still wished to prosecute it. This judgment now binds the ELRC and all subordinate courts: no order may be made in adversarial proceedings without hearing the parties, without reasons, and no major relief may be granted at the interlocutory stage.

Key legal issues

Whether orders made without hearing the parties are lawful

Holding

The order was made in breach of the appellant's right to a fair hearing under Article 50(1) of the Constitution and was irregular and in excess of jurisdiction.

Reasoning

The Union's application was contested; the appellant had filed a replying affidavit the day before the hearing, and the Union's representative indicated he would seek an adjournment on the ground of late service. Before any application or submissions were made or heard, the judge sua sponte made an order directing commencement of union dues deductions. The Court held that in adversarial proceedings the entitlement to a fair hearing under Article 50(1) of the Constitution was breached, rendering the order irregular and in excess of jurisdiction.

p. 2

Whether the order granted a major relief at the interlocutory stage

Holding

The order effectively determined both the main prayer in the application and the claim for arrears of union dues, contrary to the principle that major reliefs cannot be granted at the interlocutory stage before hearing the parties.

Reasoning

The order directed commencement of deductions of union dues with effect from April 2017, effectively granting the substantive relief sought in the claim, while the recognition dispute remained pending. Relying on Olive Mwihaki Mugenda & Another v Okiya Omtata Okoiti, the Court held that granting orders with the effect of a major relief at an interlocutory stage, before full hearing, is irregular and prejudiced the appellant.

p. 2

Whether the judge exercised her discretion judicially in the absence of reasons

Holding

The order was not sought by the respondent and no reasons were given for it; therefore the discretion was not exercised judicially.

Reasoning

The Court noted that the order directing deductions had not been sought by the Union's representative at that stage of the hearing and that the learned judge assigned no reasons for making it. In the absence of reasons, the Court could not conclude that the discretion was exercised judicially, reinforcing the conclusion that the order could not stand.

p. 2

Legal principles established

In adversarial interlocutory proceedings, a party is entitled to be heard before any orders are made; orders made without hearing the parties breach the right to a fair hearing under Article 50(1) of the Constitution and are irregular and made in excess of jurisdiction.
It is irregular to grant, at an interlocutory stage, orders that effectively dispose of a major relief in the suit before the parties have been heard.
A discretionary order must be supported by reasons; in the absence of reasons, the discretion has not been exercised judicially, and orders not sought by any party cannot stand.

Court orders

1.The appeal is allowed, with costs to the appellant
2.The order of the court dated 29th March, 2017 is set aside
3.The application is remitted to the trial court for hearing interparties if the Union is still interested in prosecuting the application

Authorities

Legislation

Constitution of Kenya, 2010Article 50(1)

Cases cited (1)

Olive Mwihaki Mugenda & Another vs Okiya Omtata Okoiti & 4 Others
[2014] eKLR

On appeal from: Employment and Labour Relations Court; Cause No. 66 of 2017
Jurisdiction invoked: First appellate jurisdiction over the Employment and Labour Relations Court under the employment and labour relations statutory framework (not expressly stated in the judgment)

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.

John Munene Stephen v Kenya Wildlife Service & another [2022] KEELRC 462 (KLR)
[2022] KEELRC 462 (KLR)21 Mar 2022applied

Cite this brief

Caselaw, "Khetia Drapers Limited v Kenya Union of Commercial Food and Allied Workers [2018] KECA 792 (KLR)", Case Analysis (2018). Civil Appeal No. 48 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/792/eng@2018-03-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.