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ELRCOtherCause No. 1530 of 2012· [2012] KEELRC 235 (KLR)

Aviation and Airport Services Workers Union V Kenya Airways Limited [2012] KEELRC 235 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
5 October 2012
RSRadido Stephen
3,210 words in judgment
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The bottom line

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Kenya's Industrial Court, not civil procedure rules, decides who pays legal costs in employment disputes, using a 'just outcome' standard.

What this practically means

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Executive summary

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The Claimant Union, Aviation & Airport Services Workers Union, filed a Memorandum of Claim against Kenya Airways Ltd on 30 August 2012 together with a Motion seeking vacation-hour hearing and injunctive reliefs to stop a retrenchment exercise, and interim orders were granted by Justice Ongaya. It emerged that a parallel Cause (No. 1360 of 2012) over the same retrenchment had been filed on 10 August 2012 by the Aviation and Allied Workers Union, whose injunctive orders had been lifted by Lady Justice Mbaru, and Lady Justice Onyango had stayed Justice Ongaya's orders on finding the two Causes were brought by the same entity seeking similar orders. When the matters came before Radido J on 10 September 2012, the Claimant's Advocate applied to withdraw Cause No. 1530 of 2012; withdrawal was granted but costs were reserved. The Respondent sought costs, arguing the interim orders had been discharged and litigation is expensive; the Claimant submitted costs should be governed solely by the Industrial Court (Procedure) Rules 2010 and not the Civil Procedure Rules. The Court held that section 12(4) of the Industrial Court Act, 2011, read with rule 27(1)(e) of the 2010 Rules, governs costs in the Industrial Court, requiring an order the Court considers just, and that the Civil Procedure Act costs regime does not apply given the material differences between the statutes and the specialist nature of the Court. The Court outlined considerations for a just costs order, including the social-partner relationship, parties' conduct and pre-litigation resolution, and whether the Cause is frivolous or mala fides. Finding the Causes were not frivolous, concerned members' livelihoods, and were withdrawn before inter partes hearing, the Court ordered no order as to costs.

Key legal issues

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01

Whether the Civil Procedure Act/Rules govern costs in the Industrial Court

Holding

They do not; section 12(4) of the Industrial Court Act, 2011 with rule 27(1)(e) of the Industrial Court (Procedure) Rules 2010 governs, requiring the Court to order what is just

Reasoning

A comparison of section 27 of the Civil Procedure Act and section 12(4) of the Industrial Court Act reveals a material difference: the latter obliges the Court to consider what is just. Given the specialist nature of the Court, its social-partner litigants, and the scheme of the labour statutes promoting negotiation and settlement, the civil procedure regime on costs is inapplicable. The Act does not define 'just', which the Court reads as legally right, lawful and equitable.

p. 4
02

What costs order is just where a Cause is withdrawn before inter partes hearing

Holding

No order as to costs, because the Cause was not frivolous or mala fides, concerned livelihoods, and was withdrawn before the inter partes hearing; the Respondent did not show significant costs incurred

Reasoning

Although filing two Causes over the same subject matter was regrettable conduct the Court will not entertain and could attract costs, the Causes were founded on a retrenchment affecting members' livelihoods, were not brought to harass, and were not frivolous or mala fides. The withdrawal occurred before the injunctive Motion was heard inter partes, and the Respondent did not demonstrate significant legal costs.

p. 6

Legal principles established

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  • The provisions of the Civil Procedure Act on award of costs do not apply in the Industrial Court; costs in the Industrial Court are governed by section 12(4) of the Industrial Court Act, 2011 as read with rule 27(1)(e) of the Industrial Court (Procedure) Rules 2010, and the Court must make an order it considers just
  • In deciding what is a 'just' costs order, the Industrial Court should consider the ongoing relationship of the social partners, the parties' conduct including pre-litigation resolution efforts, and whether the Cause is frivolous or filed mala fides

Court orders

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  1. 1.The application for withdrawal of Cause No. 1530 of 2012 is allowed (granted in the ex tempore ruling)
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 27
  • Industrial Court Act, 2011Section 12(4)
  • Industrial Court Act, 2011Section 15
  • Industrial Court (Procedure) Rules 2010Rule 27(1)(e)
  • Labour Relations ActSections 10, 58, 62, 66, 67, 68 and 70
  • Employment ActSections 41, 47, 49 and 87
  • Constitution of Kenya, 2010Article 2(5)

Cases cited (2)

  • Supermarine Handling Services Ltd v Kenya Revenue Authority
    Mombasa Civil Appeal No. 85 of 2006
  • Joseph Chirchir Kosgei v the Chairman, Board of Governors, Eldoret Polytechnic
    Eldoret Civil Appeal No. 211 of 2005
Jurisdiction invoked
Industrial Court Act, 2011 (Section 12(4))

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Aviation and Airport Services Workers Union V Kenya Airways Limited [2012] KEELRC 235 (KLR)", Case Analysis (2012). Cause No. 1530 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/235/eng@2012-10-05

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