Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedELRCC (Cause) of 2015, filed 9.11.2015· [2015] KEELRC 164 (KLR)

Dock Workers Union (K) v Kenya Ports Authority [2015] KEELRC 164 (KLR)

Employment and Labour Relations Court
4 December 2015
OMONESMUS MAKAU
942 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court confirmed that objections requiring evidence, like forgery claims, must be brought by motion, not preliminary objection.

What this practically means

#

Executive summary

#
The claimant union sued the respondent on 9 November 2015 seeking declarations of its right to represent its members employed by the respondent, including access to the respondent's premises; a declaration that the respondent has no mandate to supervise the union's operations; an order compelling the respondent to allow unlimited access to union officials and to continue convening the Joint Industrial Council for dispute handling and CBA negotiations; and a permanent injunction against interference with the union's programmes, activities and officials. Together with the suit, the claimant filed a Notice of Motion seeking interim relief in terms of the declaratory and injunctive prayers. The respondent filed a Notice of Preliminary Objection dated 10 November 2015 seeking to strike out both the suit and the Motion on two grounds: that the statement of claim was signed by an unauthorised representative, Mr. Leornard Rufus Ochieng, the Notice of Authority purportedly signed by General Secretary Simon Sang being a forgery; and that the reliefs were sub judice in ELRCC No. 448 of 2015 filed by former employees of the claimant in their personal capacity, in which access orders had already been denied at the interlocutory stage by Rika J. The claimant opposed, arguing the court lacked capacity to investigate forgery and that the parties and reliefs in the two suits were different. The court held that the objection did not qualify as a preliminary objection because it was not a pure point of law: it required investigation of facts, as shown by the respondent's appointment of a Document Examiner and production of pleadings from the earlier suit. The proper vehicle was a motion supported by evidence. The preliminary objection was dismissed with no order as to costs. The main suit and Motion remain pending.

Key legal issues

#
01

Whether a preliminary objection alleging forgery of a signature on pleadings is a valid preliminary objection

Holding

It is not; it requires investigation of facts and is therefore not a preliminary objection on a pure point of law

Reasoning

The court held that a preliminary objection must be purely on points of law and determinable without calling evidence or investigating facts. The respondent's objection required investigation of forgery, evidenced by the respondent appointing a Document Examiner to verify signatures. Further, the objection was raised before filing the defence, so it was not founded on the pleadings. A motion supported by evidence was the proper vehicle.

p. 2
02

Whether the sub judice ground could be raised by way of preliminary objection

Holding

No; proving sub judice required production of pleadings and other factual material, disqualifying it as a preliminary objection

Reasoning

The defence counsel produced a copy of the pleadings in ELRCC No. 448 of 2015 to prove sub judice. The court reasoned that the need to avail evidence to support the objection demonstrated that it depended on facts, not pure law, and should have been brought by motion supported by evidence rather than a notice of preliminary objection.

p. 2

Legal principles established

#
  • A preliminary objection must be founded purely on points of law, must be capable of determination without evidence or investigation of facts, and if allowed would terminate the suit in limine
  • There can be no preliminary objection on points of fact; where facts must be established, the proper course is a motion supported by evidence

Court orders

#
  1. 1.The preliminary objection dated 10.11.2015 is dismissed
  2. 2.No order as to costs

Authorities

#

Cases cited (1)

  • Muhamed Yakub Athman & 19 vs Kenya Ports Authority
    ELRCC No. 448 of 2015
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Dock Workers Union (K) v Kenya Ports Authority [2015] KEELRC 164 (KLR)", Case Analysis (2015). ELRCC (Cause) of 2015, filed 9.11.2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/164/eng@2015-12-04

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