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ELRCPartially AllowedHCC No. 174 of 2012 (formerly High Court at Kisumu, referred to Industrial Court)· [2013] KEELRC 635 (KLR)

Mohamed Rafiz Issak T/A Al Noor Cafeteria v Kenya Hotels & Allied Workers Union [2013] KEELRC 635 (KLR)

Industrial Court of Kenya
4 July 2013
HWHellen Wasilwa
539 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 threw out a preliminary objection because it mixed law with facts, reminding parties that such objections must raise pure points of law only.

What this practically means

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Executive summary

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The respondents raised a preliminary objection to the claimants' application dated 18.12.2012, contending that the dispute concerning recognition and dismissal ought initially to have been filed before the Industrial Court under Sections 74 and 77 of the Labour Relations Act rather than by way of an application under Section 1(a)(b) of the Civil Procedure Act. The matter had been filed as HCC No. 174 of 2012 at the High Court in Kisumu and referred to the Industrial Court by Aroni J on 21/12/2012 under Section 12 of the Industrial Court Act, 2011. The claimants opposed the objection, arguing it raised factual issues rather than pure points of law, relying on Mukisa Biscuits Co v West End Distributors Ltd, and submitted that the true grievance related to the closure of their business and the alleged illegal activities of Union officials, not recognition. Adopting the Mukisa Biscuits definition of a preliminary objection, the court found the objection was a mixture of law and fact and partly a reply to the main application. It dismissed the preliminary objection but directed the claimants to amend their pleadings to bring them under the correct procedures governing the Industrial Court.

Key legal issues

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Whether the respondents' preliminary objection on jurisdiction and procedure raises pure points of law

Holding

The objection was dismissed because it mixed points of law with factual questions and responses to the main application

Reasoning

Applying Mukisa Biscuits Co v West End Distributors Ltd, the court held that a preliminary objection must be confined to pure points of law. The respondents' objection required ascertainment of facts, including the circumstances leading to closure of the claimants' business, and partly amounted to a reply to the main application. The court nonetheless directed amendment of pleadings to bring the claim under the proper statutory procedure (Sections 74 and 77 of the Labour Relations Act).

p. 2

Legal principles established

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  • A preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained

Court orders

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  1. 1.Preliminary objection dismissed as not raising pure points of law
  2. 2.Claimants directed to amend their pleadings and bring them under the correct procedures of law governing the Industrial Court

Authorities

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Legislation

  • Civil Procedure ActSection 1(a)(b)
  • Industrial Court Act, 2011Section 12
  • Labour Relations ActSection 74
  • Labour Relations ActSection 77

Cases cited (1)

  • Mukisa Biscuits Co =VS= West End Distributors Ltd
    EALR [1969] 696
Jurisdiction invoked
Section 12 of the Industrial Court Act, 2011 (following referral from the High 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, "Mohamed Rafiz Issak T/A Al Noor Cafeteria v Kenya Hotels & Allied Workers Union [2013] KEELRC 635 (KLR)", Case Analysis (2013). HCC No. 174 of 2012 (formerly High Court at Kisumu, referred to Industrial Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/635/eng@2013-07-04

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