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ELRCDismissedCause No 449 of 2014· [2014] KEELRC 1440 (KLR)

Unilever Tea Kenya Limited v Kenya Plantation & Agricultural Workers Union [2014] KEELRC 1440 (KLR)

Industrial Court of Kenya
21 November 2014
RSRadido Stephen
2,372 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 dismissed both sides' applications in a strike dispute, ruling that emergency relief cannot shortcut a full trial.

What this practically means

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Executive summary

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This Industrial Court ruling at Nakuru by Radido Stephen J dealt with competing interlocutory motions arising from an alleged strike at Unilever Tea Kenya Limited on or around 22 September 2014 over the unconcluded 2014/2015 Collective Bargaining Agreement. The Claimant filed a Memorandum of Claim and a verbose motion seeking a declaration that the strike was prohibited, injunctions, and return-to-work orders. On 24 September 2014 Ongaya J granted prayers 3 and 4 and directed recourse to grievance mechanisms. The Respondent then filed its own motion seeking to vary or set aside those orders and its own injunctive relief restraining terminations, without filing a Response to the main Claim. The court found as a fact that there was work disruption on 22 September 2014 but declined to determine its legality, since a conclusive declaration would fetter the trial judge in potential unfair termination claims. Prayer 2 was declined as a declaration of finality unsuitable at interlocutory stage; prayers 6, 7 and 8 were overtaken by events as employees resumed work on 29 September 2014. The Respondent's motion was held incompetent because injunctive relief was not anchored on a substantive suit or counterclaim, the court applying Giella v Cassman Brown principles and the competency jurisprudence of Ringera, Harris and Odunga JJ to the Industrial Court Act. Both motions were dismissed with no order as to costs.

Key legal issues

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01

Competency of an injunction application not anchored on a substantive suit

Holding

The Respondent's motion was incompetent, an abuse of process and lacking in merit because it sought injunctive relief without a substantive suit or counterclaim

Reasoning

The court reviewed authorities: Ringera J adopted a restrictive view that interim injunctions unsupported by a substantive claim are incompetent; Harris J and Odunga J took a wider view. The court applied the principle to the Industrial Court Act and rules, holding the Respondent's motion incompetent since it filed no Response or counterclaim placing its own facts before the Court.

p. 4
02

Whether a declaration of illegality of a strike can issue at the interlocutory stage

Holding

No; such a declaration is a final declaration and was declined

Reasoning

The court distinguished Kakuzi decisions: in one, illegality was declared only after a full hearing; in the other, only an injunction was confirmed without a declaration. A conclusive determination would also fetter the trial judge in potential unfair termination claims.

p. 3
03

Whether there was in fact a strike on 22 September 2014

Holding

The court was satisfied there was work disruption on 22 September 2014 but did not determine its legality

Reasoning

Based on correspondence including the County Labour Officer's letter, the court found a work disruption occurred. Whether it amounted to an illegal strike was left for the trial, as dismissals were alleged and a conclusive finding would fetter the trial judge on unfair termination claims.

p. 3

Legal principles established

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  • An application for interim injunction must be anchored on a substantive suit or counterclaim to be competent
  • Injunctive relief depends on the nature of the suit and satisfaction of the applicable legal principles

Court orders

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  1. 1.The Claimant's motion dated 22 September 2014 is dismissed with no order as to costs
  2. 2.The Respondent's motion dated 29 September 2014 is dismissed with no order as to costs

Authorities

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Legislation

  • Industrial Court Actnot specified
  • Civil Procedure Rulesnot specified

Cases cited (7)

  • Giella v Cassman Brown & Brothers Ltd
  • Kakuzi Ltd v Kenya Plantation & Agricultural Workers Union
    Nairobi Cause No. 992 of 2012
  • Kakuzi Ltd v Kenya Plantation & Agricultural Workers Union
    Nairobi Cause No. 1450 of 2011
  • Kihara v Barclays Bank of (K) Ltd
    (2001) 2 EA 420 (CAK)
  • Morris and Co. Ltd v Kenya Commercial Bank Ltd
  • Njoroge Kironyo and others v Kironyo Njoroge
    (1976) KLR 109
  • Alfred Mwai Kariuki v Kenya Commercial Bank Ltd & Another
    (2012) eKLR
Jurisdiction invoked
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, "Unilever Tea Kenya Limited v Kenya Plantation & Agricultural Workers Union [2014] KEELRC 1440 (KLR)", Case Analysis (2014). Cause No 449 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1440/eng@2014-11-21

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