EAST AFRICAN PORTLAND CEMENT COMPANY LIMITED V ATTORNEY GENERAL & ANOTHER [2013] KEELRC 225 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether ex parte interim orders reinstating employees infringed the employer's constitutional rights
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
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.
Whether an employer whose managers were reinstated ex parte was denied a fair hearing and access to justice
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
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.
Whether equality under Article 27 required the Industrial Court to treat the employer and the managerial employees identically
The 1st and 2nd Interested Parties were highly placed managers in strong bargaining positions who did not merit ex parte reinstatement
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.
Whether the interim orders were in substance final orders
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
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.
Legal principles established
#- 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
#- 1.The Petition is declined
- 2.Parties to prosecute and defend Industrial Court Cause Number 484 of 2012 to its conclusion
- 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.No order on the costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.