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ELRCPartially AllowedCause No 101 of 2015· [2015] KEELRC 1131 (KLR)

Kenya Plantation & Agricultural Workers Union v P.J. Dave Flowers Ltd [2015] KEELRC 1131 (KLR)

Employment and Labour Relations Court
8 May 2015
RSRadido Stephen
1,417 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment and Labour Relations Court ordered an employers association to stop interfering with workers' right to join and participate in their union while the case is decided.

What this practically means

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Executive summary

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This interlocutory ruling by the Employment and Labour Relations Court at Nakuru dealt with a motion by the Kenya Plantation & Agricultural Workers Union seeking orders restraining the Respondent, an employers association, from intimidating, victimising or terminating union members and from interfering with employees' right to join and participate in union activities. Interim orders had been granted ex parte on 14 April 2015 following the dismissal of about five employees around 9 April 2015, dismissal letters largely giving no reasons, amid disputes over shop steward elections and the forwarding of check-off forms. The Respondent, in a move the Court deprecated, filed two counter applications rather than a replying affidavit; the Court held that a party served with an interlocutory motion should respond by grounds of opposition or replying affidavit, as the inter partes hearing naturally leads to confirmation or vacation of ex parte orders. The Court found the constitutional rights of association (Article 36) and trade union participation (Article 41) engaged, and that dismissals without reasons coupled with mass resignations pointed to undue influence by the Respondent meriting further investigation. However, prayer 2 had become spent, and the Court declined to grant relief in the wide wording sought because it would operate in perpetuity at the interlocutory stage. The Court granted a tailored order restraining interference with employees' union rights pending hearing of the Cause, and, noting near similar issues in Nairobi Cause No. 356 of 2015 and the Respondent's proximity to Nairobi, transferred the Cause to Nairobi for directions and possible consolidation. Costs were awarded to the Claimant.

Key legal issues

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01

Whether interlocutory injunctive relief protecting employees' freedom of association should issue

Holding

Prayer 3 was granted because dismissals without reasons and mass resignations pointed to undue influence by the Respondent

Reasoning

The Court found employees had constitutional rights under Articles 36 and 41. Around the time the Union sought to elect shop stewards and recruit members, the Respondent dismissed about four employees without giving reasons and, if the Respondent is believed, several employees resigned. These circumstances suggested undue influence meriting further investigation, satisfying the Court that the injunctive relief was warranted, though tailored to avoid an order in perpetuity.

p. 3
02

Proper procedural response to an interlocutory motion

Holding

Counter applications to discharge ex parte interlocutory orders are improper; the inter partes hearing is the natural mechanism

Reasoning

The Court deprecated the Respondent's filing of two counter applications, noting they confuse the issues for determination at the interlocutory stage and waste judicial time. The natural consequence of an inter partes hearing is confirmation or vacation of ex parte orders after hearing both sides, so a discharge application serves no useful legal purpose.

p. 2
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Whether the Cause should proceed in Nakuru

Holding

The Cause was transferred to Nairobi for possible consolidation with Nairobi Cause No. 356 of 2015

Reasoning

The Court noted near similar issues arose in the pending Nairobi Cause and that the Respondent was domiciled near Nairobi; parties could also address internal dispute resolution mechanisms before the Nairobi Court.

p. 3

Legal principles established

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  • A party served with a motion seeking interlocutory injunctive relief should file grounds of opposition or a replying affidavit, not a counter application
  • Individual employees have constitutional rights to associate and to form, join or participate in trade union activities, and trade unions have the right to organise and bargain collectively
  • Disciplinary control by an employer is only implicated where there is specific misconduct, poor performance or incapacity, and must comply with due process

Court orders

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  1. 1.An order restraining the Respondent by themselves, their agents, assigns, servants, any officer and or representatives from interfering with the employees' right to join, engage and participate in the activities of Kenya Plantation & Agricultural Workers Union pending the hearing of the Cause
  2. 2.That this Cause be transferred to Nairobi to be placed before the Principal Judge for further directions
  3. 3.Claimant to have costs of the motion

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 36
  • Constitution of Kenya, 2010Article 41(2)(c)
  • Constitution of Kenya, 2010Article 41(3)(b)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over trade disputes and employment matters (Constitution Article 41 rights engaged)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Plantation & Agricultural Workers Union v P.J. Dave Flowers Ltd [2015] KEELRC 1131 (KLR)", Case Analysis (2015). Cause No 101 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1131/eng@2015-05-08

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