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ELRCDismissedCause (not stated in judgment)· [2014] KEELRC 32 (KLR)

Kenya Plantation & Agricultural Workers Union v Wilham Kenya Limited & another [2014] KEELRC 32 (KLR)

Employment and Labour Relations Court
18 December 2014
RSRadido Stephen
1,309 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a union's emergency orders because its key document named the wrong company, showing evidence must match the parties you sue.

What this practically means

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Executive summary

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The Kenya Plantation & Agricultural Workers Union sued Wilham Kenya Ltd and Rift Valley Vegetables over the alleged wrongful dismissal of 23 employees and refusal to deduct and remit trade union dues. Together with its Memorandum of Claim filed on 14 July 2014, the Union moved the Court seeking interlocutory orders restraining termination, victimisation and interference with employees' freedom of association, and directing deduction and remittance of union dues. Interim orders were issued by Ongaya J and extended several times pending inter partes hearing. The Union argued that it had recruited unionisable employees and delivered Form S, but the Respondents refused to commence deductions and instead dismissed and intimidated members. The 1st Respondent countered that the employees named in the Form S denied signing it or being Union members, that deductions under section 48(3) of the Labour Relations Act could only begin on 1 July 2014, and that the Union lacked locus standi absent a CBA. Examining the supporting affidavit of Thomas Kipkemboi, the Court found that the Form S was addressed to Shalimar Vegetables, a non-party, and that no legal nexus between Shalimar Vegetables and the Respondents had been shown by evidence or pleading; such a nexus could not be established through submissions. The Court also questioned whether the 2nd Respondent was a juristic person and whether it had been served. Finding a fundamental incongruency between the motion and the supporting material, the Court dismissed the motion with no order as to costs and directed that the Cause proceed to hearing on the merits.

Key legal issues

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Whether the Union demonstrated entitlement to interlocutory orders for deduction of union dues and protection from victimisation

Holding

The motion was dismissed because the Union failed to show a legal nexus between the Respondents and Shalimar Vegetables, the entity to which the Form S was addressed

Reasoning

Exhibit TK1, the Form S, was addressed to Shalimar Vegetables, which is not a party to the suit. No pleading or evidence showed any legal relationship between Shalimar Vegetables and Wilham Kenya Ltd or Rift Valley Vegetables. Such a nexus could not be supplied by submissions, and the incongruency between the motion and the supporting material led the Court to decline the orders while reserving the substantive dispute for trial.

p. 3
02

Service and capacity of the 2nd Respondent

Holding

The Court noted uncertainty whether the 2nd Respondent is a juristic person capable of being sued and whether it was served

Reasoning

The affidavit of service did not clarify whether both Respondents had been served, and nothing before the Court indicated the 2nd Respondent's legal status. This compounded the Court's reluctance to grant coercive interlocutory orders against parties whose capacity and service were unconfirmed.

p. 3

Legal principles established

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  • A superior court adjudicates on the material placed before it; a legal nexus between parties cannot be established through submissions alone

Court orders

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  1. 1.The motion dated 14 July 2014 is dismissed with no order as to costs
  2. 2.The Cause to be fixed for hearing on the merits
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the stated dispute (wrongful dismissal and refusal to deduct and remit trade union dues); Court noted 'The Employment and Labour Relations Court is now a superior Court of record'

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, "Kenya Plantation & Agricultural Workers Union v Wilham Kenya Limited & another [2014] KEELRC 32 (KLR)", Case Analysis (2014). Cause (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/32/eng@2014-12-18

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