Kenya Aviation Workers Union v Bollore Africa Logistics – Kenya & 3 others [2015] KEELRC 231 (KLR)
The bottom line
#Kenya's Employment Court allowed an aviation union's agency-fee dispute to proceed, rejecting objections over procedure, timing, and parties.
What this practically means
#Executive summary
#Key legal issues
#Whether the objections were genuine preliminary objections on points of law
The court accepted that the grounds raised were grounded in law and did not require evidence, but declined them on their merits
Applying Mukisa Biscuit and Oraro v Mbajja, the court found the grounds - abuse of process, procedure, limitation and wrong party - were matters grounded in law based on the Court Rules, the Employment and Labour Relations Court Act and the Labour Relations Act, determinable without evidence or the exercise of discretion. However, on analysis the objections did not succeed on their merits.
Whether Legal Notice No.5027 of 2009 had been revoked by Legal Notice No.6135 of 2012, rendering the suit baseless
The notices relate to different orders in different contexts; one does not revoke the other, so terminating the suit on that basis would misapply the law
The court examined Notices 5027 of 2009, 6135 of 2012, 8221, 7669 and 13571. Notice 5027 was issued under section 49 and directed at a specific employer (SDV Transami) and the Claimant, while Notice 6135, also under section 49, relates to all employers and the Interested Party. Each was made in its own context and neither revoked the other; therefore the claim founded on Notice 5027 was not without basis.
Whether the claim was time barred
The limitation challenge does not suffice because the cause of action is tied to ongoing issues culminating in the respondent's memo of 8th April 2015
The objection assumed the claim was solely a challenge to Notice 5027 of 2009, challengeable within 30 days. The court held there is a plethora of issues including the effect of subsequent notices and the respondent's memo of 8th April 2015, which affects the Recognition Agreement and CBAs, and that curtailing those issues would leave the parties in wrangles. In the interest of industrial peace the claim would proceed on merit.
Whether the suit was filed against the wrong party and in the wrong procedure
The Minister was crucial to proceedings challenging a legal notice, but non-joinder is not fatal; nor is the choice of the form of proceedings fatal, though it limits the remedies available
A challenge to a legal notice issued by the Minister must include the Minister, but failure to enjoin a crucial party does not kill the suit; remedies relating to a non-joined party simply cannot issue against the respondents. Similarly, filing a memorandum of claim instead of a judicial review application or petition is not fatal, though more is expected of legally represented parties.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot be raised where facts must be ascertained or judicial discretion exercised
- Failure to enjoin a party crucial to the proceedings is not fatal to a suit; it only limits the remedies enforceable against the parties before the court
- The title of proceedings (claim, petition or judicial review) is not a substantive issue to defeat justice; what matters is the nature of the orders sought
Court orders
#- 1.The objections set out by Leonard Ochieng for the Interested Party are declined
- 2.The interim orders shall remain in force
- 3.Issues between the Interested Party shall be addressed next as a matter requiring urgent attention
- 4.Costs shall be in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court Act and Industrial Court (Court Procedure) Rules; Labour Relations Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Aviation Workers Union v Bollore Africa Logistics – Kenya & 3 others [2015] KEELRC 231 (KLR)", Case Analysis (2015). Employment and Labour Relations Court Cause (as per pleadings; Memorandum of Claim filed 20th April 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/231/eng@2015-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.