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ELRCDismissedCause No 460 of 2015· [2015] KEELRC 248 (KLR)

Kenya Chemical & Allied Workers Union v Base Titanium Limited [2015] KEELRC 248 (KLR)

Industrial Court of Kenya
13 November 2015
OMOnesmus Makau
1,316 words in judgment
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The bottom line

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A Kenyan union lost its bid to stop an employer's actions because its injunction request was filed incorrectly, showing procedure can decide cases before merits are even heard.

What this practically means

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Executive summary

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The claimant union filed suit on 13 July 2015 seeking to compel the respondent employer to sign a recognition agreement under section 54 of the Labour Relations Act, after conciliation before the Labour office failed. Simultaneously it filed a Notice of Motion seeking interlocutory injunctions restraining the respondent from threatening or intimidating employees, verifying employee signatures at the factory, and forcing employees and supervisors to resign from the union. The respondent opposed, asserting that the union had recruited only 227 of 540 unionisable employees (42%), short of the simple majority required by section 54(1) LRA, that it had deducted and remitted union dues since August 2014, and that signature verification was only to identify ineligible employees. The court identified the threshold for interlocutory injunctions as set out in Giella v Caseman Brown, but held that because the suit was brought under section 73(1) of the LRA, any relief had to be sought within the Industrial Court Procedure Rules. Rule 16(3) permits an interim injunction application only in a suit where injunction is sought, and the main suit's reliefs did not include an injunction. The motion was therefore incompetent and the court declined to consider its merits, following its earlier decision in Paul Kamau Maina & others v Kenya Civil Aviation Authority. The Notice of Motion dated 13.7.2015 was dismissed with costs in the cause.

Key legal issues

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01

Competency of the interlocutory injunction motion under Rule 16(3) ICPRs

Holding

The motion was incompetent because the reliefs in the main suit did not include an injunction against the respondent, and the court declined to consider its merits.

Reasoning

The suit was brought under section 73(1) of the LRA, meaning any relief must be granted within the purview of the Industrial Court Procedure Rules. Rule 16(3) permits an interim injunction application in a suit where injunction is sought, but the main suit here did not plead injunctive relief. The court found the motion non-compliant and prima facie incompetent, and relied on its prior decision in Paul Kamau Maina & others v Kenya Civil Aviation Authority, declining to depart from that stance.

p. 3
02

Whether the claimant demonstrated the Giella threshold for an interlocutory injunction

Holding

The court did not determine the merits; it dismissed the motion on the competency ground without considering whether a prima facie case was established.

Reasoning

Although the court set out the Giella principles and noted the parties' competing submissions - the claimant having allegedly recruited 227 of 540 unionisable employees (42%) - it held that because the motion was incompetent under Rule 16(3) ICPRs, it would not proceed to consider its merits. The threshold analysis was therefore obiter and not determinative.

p. 3

Legal principles established

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  • An application for interlocutory injunction in the Industrial Court is incompetent where the relief of injunction is not sought in the main suit, as required by Rule 16(3) of the Industrial Court Procedure Rules
  • The threshold for an interlocutory injunction in Kenya is the Giella test: prima facie case with probability of success, irreparable harm not compensable by damages, and balance of convenience if in doubt, plus compliance with the court's rules of procedure

Court orders

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  1. 1.The claimant's Notice of Motion dated 13.7.2015 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Labour Relations ActSection 54 (including 54(1))
  • Labour Relations ActSection 62(1)
  • Labour Relations ActSection 73(1)
  • Labour Relations ActSection 4
  • Constitution of Kenya, 2010Articles 20, 28, 36 and 41(1)(2)(c)
  • Industrial Court Procedure RulesRule 16(3)

Cases cited (2)

  • Giella vs Caseman Brown
    (1973) EA 753
  • Paul Kamau Maina & others vs Kenya Civil Aviation Authority
    (2015) eKLR, ELRCC No. 88 of 2015
Jurisdiction invoked
Section 73(1) of the Labour Relations Act - referral of an unresolved trade dispute to the Industrial Court

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 Chemical & Allied Workers Union v Base Titanium Limited [2015] KEELRC 248 (KLR)", Case Analysis (2015). Cause No 460 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/248/eng@2015-11-13

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