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ELRCPartially AllowedCause No 769 of 2015· [2015] KEELRC 175 (KLR)

Kenya National Private Security Workers Union v Kenya Kazi Limited [2015] KEELRC 175 (KLR)

Industrial Court (now Employment and Labour Relations Court) of Kenya at Nairobi
13 November 2015
ANAbuodha J. N.
3,584 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court protected union members from dismissal over union activities but ruled it cannot enforce a collective bargaining agreement that was never registered.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Industrial Court at Nairobi by Abuodha J. N., delivered on 13 November 2015, on a Notice of Motion dated 8 May 2015 by a trade union claimant. The union sought orders restraining the respondent employer from dismissing, threatening, intimidating, transferring or otherwise interfering with its shop stewards and members on account of trade union activities, and liberty to hold meetings at the respondent's premises. The union alleged that the employer had declined to implement 28 agreed CBA items for its KK Commercial department, had compromised, enticed away and financed four shop stewards who sued the union in Cause No. 2212 of 2014, and had used that suit as an excuse to stall implementation. The respondent, through its Group Human Resource Manager Willis Ayieko Onyango, denied interference, maintained it had complied with the US Embassy CBA and the January 2014 commuter allowance agreement, asserted that shop stewards are ordinary employees entitled to transfers and promotions, and contended the claimed increases were economically unsustainable. The respondent also relied on its pending application of 26 June 2015 alleging the union's misconduct. The court held that only the protection of members' jobs required preservation; it refused to compel implementation of the draft CBA items, holding that a court lacks jurisdiction to enforce an unregistered CBA, and declined to grant orders mirroring the main claim as this would remove the incentive to prosecute the suit. It ordered mutual restraint: no dismissals or threats against union members for union activities, and no demonstrations or industrial action by the union, with liberty to apply. No costs order was made.

Key legal issues

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01

Test for interlocutory injunction in employment/industrial disputes

Holding

The claimant established only a limited prima facie case: preservation of members' jobs against dismissal for union activity, not the full substantive relief sought

Reasoning

The court applied the classic interlocutory test: prima facie case with probability of success and inadequacy of damages, failing which balance of probabilities. It held that prayers mirroring the main claim would render the trial academic and that only protection of jobs needed preservation pending trial.

p. 7
02

Constitutional/union rights of members versus employer's administrative rights

Holding

Prayer (a), touching members' rights, must be protected regardless of monetary adequacy, but only to the extent of restraining dismissal for union activities; reciprocal restraint imposed on the union against industrial action

Reasoning

The court recognised that rights touching trade union activity deserve protection pending trial, but balanced this by restraining the union from demonstrations or industrial action over the pending issues, preserving the status quo between employer and union.

p. 7
03

Enforceability of negotiated but unregistered CBA items

Holding

The Court has no jurisdiction to enforce a draft CBA; agreed items must follow the lawful process of execution and registration

Reasoning

The respondent argued, and the court accepted for interlocutory purposes, that items agreed in negotiation can only become enforceable upon execution and registration of the CBA in court; a party cannot bypass that process by injunction.

p. 6

Legal principles established

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  • Interlocutory relief is granted only on proof of a prima facie case with probability of success and where damages would not adequately compensate; where the court is unsure, the balance of probability test applies
  • An interlocutory injunction may nonetheless issue on monetary claims where the balance of convenience requires it
  • A court cannot enforce or implement items agreed in a draft CBA outside the statutory process of execution and registration
  • Shop stewards remain employees under individual contracts entitled to transfer and promotion on merit notwithstanding union affiliation

Court orders

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  1. 1.The respondent shall not dismiss or threaten to dismiss any of the claimant's shop stewards and union members on account of their involvement in the union activities that are the subject matter of the dispute, until the dispute is heard and determined
  2. 2.The claimant and/or its members shall not demonstrate or engage in any form of industrial action regarding the issues pending determination before the Court until the dispute is heard and determined
  3. 3.Either party is at liberty to apply

Authorities

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Legislation

  • Labour Relations Actsection 56 (and section 56(2))
  • Regulation of Wages (Protective Services) Orderminimum wage and overtime provisions

Cases cited (1)

  • Kenya Airport Authority v. New Jambo Taxis
    Civil App. 29 of 1997
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over industrial disputes under the Labour Relations Act and the Industrial Court Act (not expressly cited; the court exercised its interlocutory injunctive jurisdiction)

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 National Private Security Workers Union v Kenya Kazi Limited [2015] KEELRC 175 (KLR)", Case Analysis (2015). Cause No 769 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/175/eng@2015-11-13

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