Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedNot stated in judgment· [2016] KEELRC 1603 (KLR)

Transport Workers Union (K) v Kimilili Hauliers Co Ltd [2016] KEELRC 1603 (KLR)

Industrial Court (Employment and Labour Relations Court)
7 March 2016
565 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

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

#
The Transport Workers Union (Kenya) filed a Memorandum of Claim on 11 December 2015 on behalf of six named Grievants (John Wanyama, Johana Musungu, Winston Wafula Murunga, Jason Obegi, Peter Mungai and Francis Erima) alleging unfair termination and underpayment of terminal benefits. Together with the claim it filed a motion seeking stay orders maintaining status quo and restraining the Respondent and its sister companies (Kimilili Hauliers Ltd and Fims Ltd) from executing an intended closure or change of ownership pending determination of the cause. The Respondent filed a Response, a Notice of Preliminary Objection and a Replying Affidavit sworn by Francis Osoro Ondera. The Court (Radido J) found the motion incoherent and without legal foundation: the Grievants' services had been terminated on 14 January 2014, there was no nexus between the remedies claimed in the Memorandum and those sought in the motion, the Union had not met the Giella v Cassman Brown test for injunctive relief, and orders were sought against Fims Ltd which was not a named Respondent. The Court declined to determine res judicata at that stage, leaving the Respondent liberty to raise it later. The motion dated 9 December 2015 was dismissed with costs to the Respondent, and the parties were directed to conclude pretrial procedures so the cause could be fixed for hearing.

Key legal issues

#
01

Legal basis for the interlocutory motion

Holding

No legal basis established for the orders sought

Reasoning

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.

p. 1
02

Standard for injunctive relief

Holding

Union failed to meet the Giella v Cassman Brown criteria

Reasoning

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.

p. 1
03

Orders against a non-party

Holding

Orders cannot issue against Fims Ltd, which was not listed as a Respondent

Reasoning

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.

p. 2
04

Res judicata

Holding

Not determined at this stage; Respondent at liberty to raise it later

Reasoning

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.

p. 2

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. 1.The motion dated 9 December 2015 is dismissed with costs to the Respondent
  2. 2.Parties to conclude pretrial procedures so that the Cause can be fixed for hearing

Authorities

#

Cases cited (1)

  • Giella v Cassman Brown & Bros Co. Ltd
    (1973) EA 338
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.