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ELRCPartially AllowedNot stated in judgment· [2014] KEELRC 1310 (KLR)

George Ochieng Owiti & others v Telkom Kenya Limited [2014] KEELRC 1310 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
17 September 2014
4,282 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court allowed 943 retrenched Telkom Kenya workers to sue together but refused to freeze the company's assets before a full hearing.

What this practically means

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Executive summary

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Two claimants, on their own behalf and on behalf of 943 other former employees of Telkom Kenya Limited retrenched during a government restructuring programme, brought two notices of motion dated 28th April 2014 and 11th June 2014 in the Industrial Court. They sought a temporary injunction restraining the Respondent from selling or disposing of listed assets, an inventory of all properties, production of title deeds to enable registry searches, and leave to amend the claim and to act representatively for the 943 employees. The applications were anchored on prior successful suits by 996 other retrenched employees (the John Ochanda and Moses Obiero suits, affirmed on appeal) who were paid a golden handshake of Kshs.150,000 and severance pay of 2½ months' salary per completed year, benefits the Claimants sought on an equal-treatment basis. The Respondent opposed, denying financial crisis and disputing the claims. The court allowed the uncontested procedural prayers: the amended claim was deemed filed, the Respondent was given 14 days to amend its defence, and representative litigation by one claimant for the 943 others was permitted. It clarified that the Evidence Act does not govern production of documents before the Industrial Court. However, on the contested injunctive and asset-security orders, the court held that because the claims rested on judgments in suits to which the Claimants were not party, evidence would be required, and it would be in the interests of justice to hear the matter fully before granting such orders. The applications were therefore not allowed in the interim, the matter was prioritised for hearing, and there were no orders as to costs.

Key legal issues

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01

Whether an injunction should issue to restrain the Respondent from selling or disposing of listed assets pending determination of the Claimants' claim for golden handshake and severance pay

Holding

The injunction was refused; the matter was directed to proceed to full hearing on a priority basis

Reasoning

The court applied the Giella principles and added that labour relations cases must also consider fairness. The claims for golden handshake and severance pay were derived from judgments in suits by other employees, so the Claimants' entitlement required proof through evidence. Securing such rights in advance, where evidence is required, would prejudice the employer. The court therefore declined interim orders but prioritised the hearing.

p. 5
02

Whether leave should be granted to amend the claim and to allow one Claimant to represent 943 others

Holding

Allowed; the amended claim was deemed filed and representative capacity was accepted

Reasoning

The applications under Rule 14(6) and (7) and Rule 9(1) and (4) of the Industrial Court (Procedure) Rules were uncontested. With a schedule of names, descriptions and nature of claims attached, one statement of claim on behalf of all 944 claimants against one respondent was deemed adequate and allowed in the interests of justice.

p. 4
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Whether the court could order production of documents under the Evidence Act in the Industrial Court

Holding

The Evidence Act does not govern production or requests for documents before the Industrial Court

Reasoning

The Industrial Court (Procedure) Rules do not allow reliance on procedures under the Evidence Act. The court noted the Respondent's extensive submissions on evidence and clarified that the Evidence Act does not apply to production of documents or summons of witnesses before the Industrial Court.

p. 4

Legal principles established

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  • In employment-related injunction applications, apart from the Giella principles, the aspect of unfairness in labour relations must also be addressed
  • An applicant seeking injunctive orders to secure interests in advance must have evidence beyond mere inferences
  • The Evidence Act does not apply with regard to production, request for documents or summons of witnesses before the Industrial Court

Court orders

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  1. 1.The two applications by the Claimants dated 28th April 2014 and 11th June 2014 will not be allowed in the interim
  2. 2.Amended claim dated 28th April 2014 be deemed as filed
  3. 3.Upon service the Respondent will have 14 days to amend their defence
  4. 4.The claim and statement of the Claimants is allowed and evidence to proceed by the call of one Claimant for and on behalf of the 943 other Claimants set out in the schedule attached to the claim
  5. 5.No orders as to costs
  6. 6.The matter to be heard on priority basis on dates and timelines that the court will direct
Jurisdiction invoked
Industrial Court (Procedure) Rules, Rules 19(1) and (2), 14(6), 9(1) and (4), 14(7), 16(1) and (2), and the Labour Institutions Act, sections 24(1), (3)(a) and (d), 7(a)

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, "George Ochieng Owiti & others v Telkom Kenya Limited [2014] KEELRC 1310 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1310/eng@2014-09-17

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