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ELRCOtherNot stated in judgment· [2014] KEELRC 954 (KLR)

Kenya Plantation and Agricultural Workers Union v Kakuzi Limited [2014] KEELRC 954 (KLR)

Industrial Court of Kenya
30 April 2014
1,118 words in judgment
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The bottom line

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Kenya's Industrial Court confirmed it can hear employment disputes anywhere in the country, so suing in Nakuru instead of Nairobi was not improper forum shopping.

What this practically means

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Executive summary

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Kakuzi Limited, by notice of motion dated 27 March 2014 filed through Kaplan & Stratton Advocates, sought transfer of a claim pending before the Industrial Court at Nakuru to the Industrial Court at Nairobi, and a stay of interim orders granted on 21 March 2014 pending transfer. The applicant argued that filing at Nakuru was serious forum shopping, since its horticultural, forestry and livestock farm is at Thika, previous suits between the parties had been determined at Nairobi, and the Nakuru court had previously made decisions favourable to the claimant. The respondent, through the replying affidavit of Thomas Kipkemboi and a preliminary objection, urged that the Chief Justice's 2009 practice directions did not govern the Industrial Court, that no prejudice would be suffered, that the Nairobi diary was full to April 2015, and that the application was incompetent, premature and an abuse of process. The court overruled the preliminary objection, held the stay prayer was in substance a review application not properly before it, and held that the 2009 practice directions concerned the High Court's supervisory jurisdiction and were only a guide. The court found the Industrial Court vested with nation-wide territorial jurisdiction, constituting one forum, so the forum-shopping allegation was misconceived. Balancing convenience, the parties' places of business, past proceedings and workload, the court directed that the suit be mentioned before the Principal Judge at Nairobi for directions on the place of hearing, with costs of the application in the cause.

Key legal issues

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01

Competence of the notice of motion

Holding

The application was properly filed within the pending suit and the preliminary objection failed.

Reasoning

The court considered that the motion was filed in a suit already pending for the claimant, so there was nothing irregular in filing the notice of motion as done; it was therefore properly before the court notwithstanding the respondent's objection under rules 4 and 5.

p. 2
02

Territorial jurisdiction and forum shopping

Holding

The Industrial Court has nation-wide territorial jurisdiction; filing at Nakuru was not forum shopping.

Reasoning

Despite where the court may sit, it applies the same substantive and procedural law and constitutes one forum and platform for resolving disputes within its jurisdiction. The place of filing could not therefore constitute forum shopping, and the applicant's allegations were misconceived.

p. 2
03

Effect of the Chief Justice's practice directions of 27.2.2009

Holding

The directions referred to the High Court's supervisory jurisdiction and are only a guide for appeals; they do not strictly govern where the Industrial Court hears matters.

Reasoning

The court held the practice note published under Legal Notice No. 1756 obviously referred to the High Court's supervisory jurisdiction over subordinate courts in the stated areas and serves as a guide where appeals are preferred to this court. Strict application is challenged because the Industrial Court does not sit in as many stations as the High Court, so place of hearing is decided case by case.

p. 2
04

Place of hearing

Holding

Mention before the Principal Judge for directions on the place of hearing.

Reasoning

Guided by section 3 of the Industrial Court Act (just, expeditious and proportionate resolution) and section 29(1) (access to judicial services in all counties), and weighing the parties' places of business, prior disputes heard at Nairobi, and the stretched Nairobi court diary, the court found no hard grounds for either venue and referred the question to the Principal Judge.

p. 2

Legal principles established

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  • The Industrial Court of Kenya is vested with nation-wide territorial jurisdiction and, wherever it sits, constitutes one forum for resolving disputes within its jurisdiction.
  • The Industrial Court will determine the place of hearing of proceedings falling within its jurisdiction on a case-by-case basis.

Court orders

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  1. 1.The suit shall be mentioned before the Honourable Principal Judge at Nairobi on a date convenient to the parties for his considered directions on the place of hearing and determination of the suit
  2. 2.The costs of the application shall be in the cause
  3. 3.The parties are invited to agree and record the convenient mention date before the court at Nairobi

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Industrial Court ActSection 12(3)(vii)
  • Industrial Court Act, 2011Section 3
  • Industrial Court Act, 2011Section 29(1)
  • Industrial Court Rules 2010Rules 16(1) & (2); rules 4 and 5 (preliminary objection)
  • Civil Procedure ActSection 15
  • Legal Notice No. 1756 (Practice Directions on filing of suits, applications and references in proper courts)Practice directions published 27.2.2009
Jurisdiction invoked
Article 50(1) of the Constitution; Section 12(3)(vii) of the Industrial Court Act; Rules 16(1) & (2) of the Industrial Court Rules 2010; section 15 of the Civil Procedure 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, "Kenya Plantation and Agricultural Workers Union v Kakuzi Limited [2014] KEELRC 954 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/954/eng@2014-04-30

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