Transport Workers Union (K) v Kimilili Hauliers Co Ltd [2016] KEELRC 1603 (KLR)
The bottom line
#Kenya's Employment Court dismissed a union's emergency motion because it applied for injunctions without meeting the established legal test or suing the right company.
What this practically means
#Executive summary
#Key legal issues
#Legal basis for the interlocutory motion
No legal basis established for the orders sought
The cause of action in the Memorandum of Claim concerned unfair termination and underpayment of terminal benefits for six named Grievants whose services were terminated on 14 January 2014, whereas the motion sought to stop the Respondent from closing down. The Court found no connection between the two and held that the Union had failed to establish any legal foundation for the motion's orders.
Standard for injunctive relief
Union failed to meet the Giella v Cassman Brown criteria
The Court observed that the Union made no attempt to satisfy the established test for interlocutory injunctions as laid down in Giella v Cassman Brown & Bros Co. Ltd (1973) EA 338, namely a prima facie case with a probability of success, irreparable injury not compensable by damages, and the balance of convenience. The motion therefore could not stand.
Orders against a non-party
Orders cannot issue against Fims Ltd, which was not listed as a Respondent
The Union sought orders restraining closure or change of ownership of Kimilili Hauliers Ltd and Fims Ltd, described as sister companies, yet only one party was named as Respondent in the Memorandum of Claim. The Court noted that Fims Ltd was not a party and consequently the orders sought against it were improper.
Res judicata
Not determined at this stage; Respondent at liberty to raise it later
The Respondent apparently raised res judicata, but the Court declined to examine the issue at the interlocutory stage, holding it unnecessary at that time and leaving the Respondent free to raise it at an opportune moment during the cause.
Legal principles established
#- An applicant for injunctive relief must meet the Giella v Cassman Brown standard
- The court cannot restrain closure of a business where no nexus is shown between the remedies claimed and the orders sought, and orders cannot issue against a non-party
Court orders
#- 1.The motion dated 9 December 2015 is dismissed with costs to the Respondent
- 2.Parties to conclude pretrial procedures so that the Cause can be fixed for hearing
- Jurisdiction invoked
- Employment and labour relations dispute under the court's statutory jurisdiction; specific provision not stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Transport Workers Union (K) v Kimilili Hauliers Co Ltd [2016] KEELRC 1603 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1603/eng@2016-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.