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ELRCDismissedNot stated on face of ruling (Claim filed 15th December 2011)· [2013] KEELRC 453 (KLR)

AMALGAMATED UNION OF KENYA METAL WORKERS v DADHLEY INDUSTRIES LTD [2013] KEELRC 453 (KLR)

Industrial Court of Kenya
10 April 2013
MMM.W. Mbaru
589 words in judgment
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The bottom line

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A Kenyan court refused a union's emergency orders, ruling that a law cannot apply to events that happened before that law even existed.

What this practically means

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Executive summary

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This ruling of the Industrial Court of Kenya (M.W. Mbaru, Judge) determined a Notice of Motion dated 5th February 2013 brought by a trade union claimant under Sections 12 and 13 of the Industrial Court Act, seeking exparte orders on a certificate of urgency. The union alleged that the respondent had locked out eight named members without justifiable cause, failed to comply with orders allegedly issued by the court on 7th February 2007 under Section 48 of the Labour Relations Act restraining victimisation, and failed to remit union deductions. The respondent opposed, stating the laid-off workers were casuals and no permanent staff were locked out. The court found no attachment on the file of the alleged 2007 orders, and noted the claim filed on 15th December 2011 had never been prosecuted despite interim orders granted on 6th January 2012. The court reasoned that any order of 7th February 2007 made under the Labour Relations Act was invalid, as the Act was assented to on 22nd October 2007 and commenced on 26th October 2007, and does not operate retrospectively. It further held that granting the orders sought would in essence dispose of the entire suit, whose gist concerned the recognition agreement, at interlocutory stage. The application was declined and the parties directed to set the matter down for hearing; costs were awarded in the motion.

Key legal issues

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01

Validity of orders allegedly issued under the Labour Relations Act before its commencement

Holding

Any order made on 7th February 2007 under the Labour Relations Act was invalid because the Act commenced on 26th October 2007 and does not act retrospectively

Reasoning

The court observed that the Labour Relations Act received assent on 22nd October 2007 and commenced on 26th October 2007, both dates after the alleged 7th February 2007 order. Since the applicable law was not in force at that time and the law is not retrospective, such an order could not stand. The court also noted the absence on the file of any attachment of the alleged orders.

p. 2
02

Whether interlocutory orders should issue where they would dispose of the entire suit

Holding

The court declined the application because dealing with the orders sought would in essence dispose of the entire suit in an interlocutory application

Reasoning

The 2011 application and the present application raised the same issues as the Claim, whose gist concerned the recognition agreement between the parties. Granting the relief on the interlocutory application would effectively conclude the suit without a full hearing, so the parties were directed to set the matter down for hearing.

p. 2

Legal principles established

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  • A statute does not operate retrospectively; an order purportedly made under a statute before its commencement is invalid

Court orders

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  1. 1.The application dated 5th February 2013 is declined as filed
  2. 2.The parties are directed to set down the matter for hearing where all issues will be addressed to a conclusion
  3. 3.Costs will be in the motion

Authorities

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Legislation

  • Industrial Court ActSections 12, 13
  • Labour Relations ActSection 48
Jurisdiction invoked
Sections 12 and 13 of the Industrial Court Act

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, "AMALGAMATED UNION OF KENYA METAL WORKERS v DADHLEY INDUSTRIES LTD [2013] KEELRC 453 (KLR)", Case Analysis (2013). Not stated on face of ruling (Claim filed 15th December 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/453/eng@2013-04-10

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