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ELRCDismissedHigh Court Industrial Cause No. 263 of 2013· [2015] KEELRC 1133 (KLR)

Samson Arap Bii & 9 others v Benard Kiplagat Kilele t/a North Njoro Farm & 2 others [2015] KEELRC 1133 (KLR)

Industrial Court (Employment and Labour Relations Court)
8 May 2015
1,168 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 Court refused to grant former employees permanent protection over farm land at an interim stage, pointing to an existing agreement preserving their access.

What this practically means

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Executive summary

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Ten Claimants jointly sued the 1st Respondent on 16 August 2013 in High Court Industrial Cause No. 263 of 2013 at Nakuru, alleging wrongful dismissal and claiming salary arrears and damages. By an application dated 24 February 2015, the Claimants sought a permanent injunction restraining the Respondents and persons claiming under them from interfering with their peaceful stay on certain land parcels, orders allowing them to continue cultivating portions allocated to them during employment, and temporary restraining orders pending the hearing of the main cause fixed for 7 December 2015. The 1st and 2nd Respondents opposed, relying on the consent order of 20 May 2014 under which the Claimants were to continue cultivating and occupying housing accommodation on the land pending determination of the suit, which they said was adequate protection. The Interested Party, Lawrence Karani Silas, argued the consent order did not bind him and that the Claimants' employment, and with it any claim over the land, had ended in 2003. The Court struck out suo moto a Further Amended Memorandum of Claim filed without leave. It held that permanent orders are not granted at an interlocutory stage absent exceptional circumstances, and that the subsisting consent order already protected the Claimants' occupation and cultivation, making orders 3 and 4 unnecessary. It declined to make orders against non-parties without a hearing. The motion was dismissed with costs to the Respondents, and the parties were referred to the ruling in Benard Mukolwe & 122 Ors v Karuturi Ltd on accommodation entitlements after termination of employment.

Key legal issues

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01

Whether a permanent injunction could issue at the interlocutory stage

Holding

Order 2 of the motion could not be granted because permanent orders are not granted at an interlocutory stage and no exceptional circumstances were demonstrated

Reasoning

The Court held that it is not the practice to grant permanent relief at an interlocutory stage. The Claimants, seeking a permanent injunction before the main cause had been heard, had not demonstrated exceptional circumstances justifying such relief. The substantive claim of wrongful dismissal and entitlement to remain on the land would be determined at the hearing of the main suit.

p. 3
02

Whether orders 3 and 4 of the motion should be granted given the subsisting consent order

Holding

Orders 3 and 4 were refused because the consent order of 20 May 2014, permitting the Claimants to continue cultivating and occupying housing accommodation, remained in force

Reasoning

The Court perused the record and confirmed that counsel consented to the order of 20 May 2014 maintaining the status quo. Since that consent order was still in place, granting orders 3 and 4 would serve no purpose. The Court also noted that no third-party interest had been disclosed at the time the consent order was made, and it could not speculate on whether such interest existed or its nature.

p. 3
03

Whether orders could be made against non-parties (Gathee / Lawrence Karani Silas)

Holding

The Court declined to make orders against Gathee or Lawrence Karani Silas because they were not parties to the Cause and had not been afforded an opportunity to be heard

Reasoning

The Interested Party argued the consent order did not bind him and that the Claimants had no claim over the land, the employment relationship having ended in 2003. The Court held it would be unjust and unfair to make orders against persons who were not parties to the Cause without giving them a hearing. The Interested Party was left to consider options for joining the proceedings.

p. 3
04

Treatment of the Further Amended Memorandum of Claim filed without leave

Holding

The Court suo moto struck out the Further Amended Memorandum of Claim filed on 19 February 2015 as it was filed outside the agreed timelines and without leave

Reasoning

On 3 December 2014 the Claimants had been granted leave to file an amended claim, but on 19 January 2015 they retracted and confirmed the 10 March 2014 Amended Memorandum of Claim stood. They nonetheless purported to file a Further Amended Memorandum of Claim on 19 February 2015, outside the agreed timelines and without leave, which the Court struck out on its own motion.

p. 2

Legal principles established

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  • Permanent injunctions are not granted at the interlocutory stage absent exceptional circumstances
  • A court cannot make orders against persons who are not parties to the cause without affording them an opportunity to be heard
  • Where a consent order protecting a party's occupation is in place, a party alleging breach must seek redress through the normal legal procedures rather than fresh interlocutory orders

Court orders

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  1. 1.The motion dated 24 February 2015 was dismissed
  2. 2.Costs of the motion to the Respondents
  3. 3.The Further Amended Memorandum of Claim filed on 19 February 2015 without leave was struck out suo moto by the Court
  4. 4.Mr. Karanja for the Interested Party to consider options available if the Interested Party wishes to participate in the proceedings
  5. 5.The parties to consider the ruling in Benard Mukolwe & 122 Ors v Karuturi Ltd (in receivership) & 4 Ors on entitlement to accommodation when the employment relationship has ended

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 of the motion referenced as relief sought; no statute otherwise identified

Cases cited (1)

  • Benard Mukolwe & 122 Ors v Karuturi Ltd (in receivership) & 4 Ors
    Nakuru Cause No. 329 of 2014
Jurisdiction invoked
Original jurisdiction of the Industrial Court over employment and labour relations disputes (Employment and Labour Relations Court Act); the Cause was filed as High Court Industrial Cause No. 263/13

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, "Samson Arap Bii & 9 others v Benard Kiplagat Kilele t/a North Njoro Farm & 2 others [2015] KEELRC 1133 (KLR)", Case Analysis (2015). High Court Industrial Cause No. 263 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1133/eng@2015-05-08

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