Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 433 of 2015· [2015] KEELRC 1033 (KLR)

Kenya Airways Limited v Kenya Airline Pilots Association [2015] KEELRC 1033 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
28 May 2015
4,866 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled that a union-coordinated withdrawal of pilot goodwill counts as illegal industrial action, banning KALPA's go-slow against Kenya Airways.

What this practically means

#

Executive summary

#
Kenya Airways Limited moved the Industrial Court by Notice of Motion dated 20th March 2015 under Sections 76, 77(1), 78(1) and 65 of the Labour Relations Act seeking to restrain KALPA from calling a go-slow, strike or withdrawal of goodwill, to revoke a circular issued on 17th March 2015 urging members to withdraw goodwill, and to direct urgent conciliation. The claimant alleged the withdrawal was coordinated industrial action lacking statutory notice, had caused losses exceeding KShs 50 million through cancelled flights, and threatened over 4,000 jobs, against the backdrop of early retirement notices to pilots and a CBA negotiation deadlock. KALPA opposed, arguing goodwill was a personal, discretionary matter outside the contract and CBA, that its circular merely reminded members of contractual and Civil Aviation rest entitlements, and that the motion was defective, speculative, and an abuse of process, citing Giella v Cassman Brown, Kenya Ferry Services and TSC v KNUT. The court framed two issues: whether a prima facie case was established and what orders to grant. It held the failure to seek orders pending the claim rather than the application was a curable mistake under Article 159. On goodwill, it found that although a personal relationship between pilot and employer, the union had taken control of it, so coordinated withdrawal amounted to industrial action. Finding losses unrefuted, the court held a prima facie case established and allowed the application: KALPA was directed to withdraw the goodwill withdrawal circular and restrained from calling industrial action on pending issues, parties were directed to conciliate within 90 days and report back, with costs in the cause.

Key legal issues

#
01

Whether withdrawal of goodwill constitutes industrial action

Holding

It does, where the union controls and coordinates the withdrawal through a circular directing members on a date and manner of withdrawal

Reasoning

While goodwill may originate as a personal relationship of respect between individual pilot and employer, the union took over and 'controlled' it by issuing a circular with elaborate instructions including not answering calls and declining roster changes. By urging members to withdraw goodwill on a set date, the union demonstrated it controlled the individual pilots, converting the withdrawal into collective industrial action.

p. 9
02

Whether a prima facie case was established under the Giella v Cassman Brown principles

Holding

Yes; the unrefuted demonstration of losses exceeding 50 million from cancelled flights and threatened worse damage satisfied the test

Reasoning

The claimant showed that the goodwill withdrawal had gravely impacted operations, with losses of over KShs 50 million and threats to over 4,000 jobs, a position not refuted by the respondents. Damage was bound to worsen absent intervention, satisfying the prima facie case threshold for interlocutory relief.

p. 9
03

Whether failure to seek orders pending determination of the claim (rather than the application) was fatal

Holding

No; it was a genuine mistake correctable by the court under Article 159

Reasoning

Parties are bound by their pleadings, but the court is a court of justice and should not punish a genuine mistake so as to subvert justice. The omission was an error of process, not substantive justice, and the applicants corrected it in submissions.

p. 8

Legal principles established

#
  • A coordinated withdrawal of goodwill by a union amounts to industrial action, especially where it follows a communication from the union urging members to withdraw it on a certain date
  • A genuine mistake in citing the wrong interlocutory stage (orders pending hearing of the application rather than of the claim) is an error of process curable under Article 159 and does not render an application incurably defective

Court orders

#
  1. 1.Respondents directed to withdraw and revoke their directive/call for withdrawal of goodwill circular circulated to its members on 17th March 2015 or any other date pending the hearing and determination of the claim
  2. 2.Respondents restrained from calling for industrial action against the Claimants on the issues pending before court pending the hearing and determination of the claim
  3. 3.Parties directed to forthwith proceed to negotiate and engage in a conciliation process within 90 days and report back to court on their progress
  4. 4.Costs of the application in the cause

Authorities

#

Legislation

  • Labour Relations ActSections 76, 77(1), 78(1), 65
  • Industrial Court RulesRules 15 and 16 Sub Rule 1 and 2
  • Constitution of KenyaArticles 159, 30, 41(1) and (2), 23(1), (2) and (3)
  • Civil Aviation Act2013; Part IX Regulations (Fatigue of Crew and Protection of Flight Crew From Cosmic Radiation), Regulations 203 and 230
  • Kenya Civil Aviation Regulations2013 Part 9

Cases cited (3)

  • Kenya Ferry Services Limited vs Dock Workers Union
    (2014) eKLR
  • Giella vs Cassman Brown & Company Limited
    (1973) EA 358
  • TSC vs Kenya Union of Teachers & Another
    (2012) eKLR
Jurisdiction invoked
Sections 76, 77(1), 78(1) and 65 of the Labour Relations Act, Rule 15 and 16 Industrial Court Rules 2010; Article 159 of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Airways Limited v Kenya Airline Pilots Association [2015] KEELRC 1033 (KLR)", Case Analysis (2015). Cause No 433 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1033/eng@2015-05-28

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