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ELRCPartially AllowedCause (Nairobi); originating from Cause No. 111 of 2013 (Nyeri ELRC)· [2016] KEELRC 3 (KLR)

Baragwi Farmers Cooperative Society Limited v Banking Insurance And Finance Union [2016] KEELRC 3 (KLR)

Employment and Labour Relations Court
5 December 2016
2,341 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court suspended a union's strike because it demanded an 8% pay increment that was never agreed or included in the court's judgment.

What this practically means

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Executive summary

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The claimant, Baragwi Farmers' Cooperative Society Limited, filed a Notice of Motion dated 7th October 2016 seeking to restrain the respondent union (BIFU) from intimidating its employees and to declare a 14-day strike notice dated 3rd October 2016 illegal and unprotected. The claimant contended that the parties' partial consent of 17th December 2014 and the judgment of 20th March 2015 in Nyeri Cause No. 111 of 2013 settled a general wage increase of 10% per year for three years, and that no 8% automatic annual increment was ever agreed. The respondent, through the affidavit of Mwaura Ngage, maintained that the 8% automatic annual increment was agreed before a conciliator and formed part of the prior CBA regime, that the strike notice related to implementation of court orders in Cause No. 111 of 2013, and that the claimant should have moved the Nyeri court rather than opening new proceedings. The court found that the 8% automatic annual increment was not among the issues before the Conciliator and was not part of the partial consent or the 20th March 2015 judgment; general wage increase and automatic annual increment being distinct concepts. Industrial action over matters extraneous to the agreed terms and the judgment is unjustified and unprotected. The application was allowed: interim orders restraining intimidation of employees were granted and the strike notice was suspended pending determination of the main suit. Costs were awarded in the cause, and the file was forwarded to the Nyeri Employment and Labour Relations Court, where the cause of action arose and the substantive issues are pending.

Key legal issues

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01

Whether the 8% automatic annual increment was agreed and part of the consent or judgment

Holding

The 8% automatic annual increment was neither part of the partial consent nor the judgment of 20th March 2015; it was not an issue before the Conciliator or the court in Cause No. 111 of 2013

Reasoning

The court examined the Conciliator's record of agreed and disputed matters. The agreed items included merit increment and increment dates, while the unresolved items listed overtime, annual leave, housing allowance, provident fund, terminal benefits, salaries and wages, effective date and commuter allowance. The automatic annual increment of 8% was not among them, so it could not have formed part of the consent or judgment.

p. 4
02

Whether the strike notice of 3rd October 2016 was protected industrial action

Holding

The strike notice was not justified as it sought industrial action over matters outside the agreed terms and outside the subject judgment, and therefore lacked the protection of the law

Reasoning

The court held that where wage increase issues were resolved by partial consent and judgment, any change could only arise in future CBA negotiations. To demand an increment not agreed or adjudicated and to call a strike over it is to introduce extraneous matters. Such industrial action is unjustified and unprotected, justifying the injunction sought by the claimant.

p. 5
03

Proper forum for determination of the substantive issues

Holding

The matter should have been filed at Nyeri ELRC where the substantive issues in Cause No. 111 of 2013 were addressed; the file is to be forwarded to Nyeri

Reasoning

Most of the substantive issues had already been addressed before the Nyeri court in Cause No. 111 of 2013, including the judgments of 20th March 2015, 22nd March 2016 and 26th May 2016. Although the court has original and exclusive jurisdiction, it opted to determine the preliminary injunction issue and transfer the file to Nyeri for the remaining substantive issues.

p. 3

Legal principles established

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  • Industrial action over matters extraneous to an agreement or court judgment lacks legal protection
  • Parties are bound by the terms of a partial consent and court judgment during the term of a CBA, and changes can only arise in future negotiations

Court orders

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  1. 1.Pending the hearing and determination of the Claim, the respondent, their officials, agents and/or members are prevented from intimidating, threatening and/or otherwise restricting the claimant's employees from going to work
  2. 2.The strike notice issued by the respondent dated 3rd October 2016 is suspended and shall not be implemented until final determination of the main suit
  3. 3.Costs in the cause
  4. 4.The file to be forwarded to the Court in Nyeri where the cause of action arose

Authorities

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Legislation

  • Labour Relations Actsections 62, 76 and 78
Jurisdiction invoked
Original and exclusive jurisdiction of the Employment and Labour Relations Court over employment and labour relations matters

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, "Baragwi Farmers Cooperative Society Limited v Banking Insurance And Finance Union [2016] KEELRC 3 (KLR)", Case Analysis (2016). Cause (Nairobi); originating from Cause No. 111 of 2013 (Nyeri ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/3/eng@2016-12-30

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