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ELRCDismissedIndustrial Court Petition Number 9 of 2012 (originally High Court Petition Number 106 of 2012)· [2013] KEELRC 225 (KLR)

EAST AFRICAN PORTLAND CEMENT COMPANY LIMITED V ATTORNEY GENERAL & ANOTHER [2013] KEELRC 225 (KLR)

Industrial Court of Kenya
11 June 2013
4,227 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court dismissed East African Portland Cement's constitutional petition, ruling that ordinary employment disputes belong in ordinary employment proceedings, not constitutional litigation.

What this practically means

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Executive summary

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This Petition, initiated in the High Court as Petition Number 106 of 2012 and transferred to the Industrial Court on 23rd July 2012, challenged ex parte orders issued by Hon. Justice Isaac E.K. Mukunya on 23rd March 2012 in Industrial Court Cause No. 484 of 2012, which quashed interdiction and termination letters issued to two employees (the 1st and 2nd Interested Parties) of East African Portland Cement Company Ltd and restrained implementation of the interdiction and termination pending an interlocutory application. The Petitioner, supported by the affidavit of Managing Director Kephar Tande, sought declarations that the Industrial Court violated Articles 27, 48 and 50 of the Constitution and failed in its duties under Articles 20, 21 and 159, together with certiorari quashing the ex parte orders and proceedings, and a direction that the Cause be reheard by a different Judge. The Attorney General opposed, arguing the orders were justified under Section 12 of the Industrial Court Act 2011 and that no rights were infringed. The 3rd Interested Party, a human rights crusader, supported the Petition. The Court found that while the ex parte orders had the effect of reinstating the employees and contravened Rule 16(8)(a) of the Industrial Court (Procedure) Rules 2010, they were interim orders with a 14-day lifespan, and the Petitioner, served on 26th March 2012 with a hearing fixed for 5th April 2012, chose to go to the High Court instead of appearing before the Industrial Court. No constitutional issue arose; the Petitioner had adequate access to justice. The Petition was declined, the parties were directed to prosecute and defend Cause No. 484 of 2012, the ex parte orders were deemed to have lapsed, and no order was made on costs.

Key legal issues

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01

Whether ex parte interim orders reinstating employees infringed the employer's constitutional rights

Holding

No constitutional issue arose; the impugned orders may have been erroneous but the Petitioner had an adequate opportunity to be heard and the orders lasted only 14 days

Reasoning

The Court found the ex parte orders of 23rd March 2012 contravened Rule 16para 8[a] of the Industrial Court (Procedure) Rules 2010, which prohibits ex parte reinstatement, but the error was a legal mistake curable at the inter partes hearing. The Petitioner was served on 26th March 2012 and the hearing was fixed for 5th April 2012, giving it nine days' notice; it instead rushed to the High Court. The interim orders had a 14-day lifespan, so the Petitioner was not finally deprived of its case.

p. 8
02

Whether an employer whose managers were reinstated ex parte was denied a fair hearing and access to justice

Holding

Access to justice was not denied; the Court invited the Petitioner to an inter partes hearing and it chose instead to litigate in the High Court

Reasoning

Fair hearing requires a real opportunity to present one's case. The Petitioner was served with the application and interim orders three days after issue and nine days before the inter partes hearing. A party who opts not to appear before a Court established by law cannot accuse that Court of denying access to justice. Judicial errors of law or fact are to be corrected by appearing before the Judge or appealing, not by constitutional petitions.

p. 7
03

Whether equality under Article 27 required the Industrial Court to treat the employer and the managerial employees identically

Holding

The 1st and 2nd Interested Parties were highly placed managers in strong bargaining positions who did not merit ex parte reinstatement

Reasoning

Equality entails that similarly situated persons be treated alike and differently circumstanced persons differently. Labour law proceeds from inequality of bargaining power, protecting weaker employees. The 1st and 2nd Interested Parties were senior managers who mobilized staff against the Managing Director and defied company directives; they were not weak bargaining partners. They came to court with soiled hands and did not merit interim ex parte reinstatement.

p. 6
04

Whether the interim orders were in substance final orders

Holding

The orders had the effect of reinstating the employees and offended the governing Rules, but they were interim orders with a 14-day lifespan, not final orders

Reasoning

The ex parte orders quashing interdiction and termination letters were in the nature of reinstatement, contrary to Rule 16para 8[a]. However, Rule 16para 8[b] limits ex parte orders to 14 days without extension, so the substantive dispute remained live and the Petitioner could have appeared on 5th April 2012 to uphold the interdiction and termination.

p. 5

Legal principles established

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  • Final orders cannot issue ex parte or at the interlocutory stage
  • The Industrial Court shall not grant an ex parte order reinstating an employee whose services have been terminated (Rule 16para 8[a], Industrial Court (Procedure) Rules 2010)
  • An ex parte order is granted once, for 14 days, and shall not be extended (Rule 16para 8[b])
  • Not every dispute should be constitutionalized; everyday disputes should be litigated under ordinary legislation

Court orders

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  1. 1.The Petition is declined
  2. 2.Parties to prosecute and defend Industrial Court Cause Number 484 of 2012 to its conclusion
  3. 3.The ex parte orders issued by the Industrial Court in favour of the 1st and 2nd Interested Parties in that Cause are deemed to have lapsed
  4. 4.No order on the costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 20, 21, 22, 27, 41, 48, 50(1), 159, 162(2)(a), 165(5)(b)
  • Industrial Court Act 2011Sections 4, 12, 17, 21(2)
  • Employment Act 2007not specified
  • Industrial Court (Procedure) Rules 2010Rule 16(8)(a) and 16(8)(b)

Cases cited (1)

  • Kananga M'Nchebere & Stephen Kamau v. East African Portland Cement, Industrial Court Cause No. 484 of 2012
Jurisdiction invoked
Article 22 and Article 165 of the Constitution of Kenya 2010 (petition for enforcement of fundamental rights and freedoms, transferred from the High Court to the Industrial Court)

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, "EAST AFRICAN PORTLAND CEMENT COMPANY LIMITED V ATTORNEY GENERAL & ANOTHER [2013] KEELRC 225 (KLR)", Case Analysis (2013). Industrial Court Petition Number 9 of 2012 (originally High Court Petition Number 106 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/225/eng@2013-06-11

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