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ELRCDismissedNot stated in the judgment· [2016] KEELRC 1640 (KLR)

Transport Workers Union (Kenya) v Kimilili Hauliers Co. Ltd & 2 others [2016] KEELRC 1640 (KLR)

Employment and Labour Relations Court (Industrial Court)
26 February 2016
RSRadido Stephen
571 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to stop planned redundancies because the union showed no evidence workers faced immediate harm.

What this practically means

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Executive summary

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The Transport Workers Union (Kenya) filed a Memorandum of Claim on 11 December 2015 against the Respondents alleging wrongful and unfair intended termination of employees of Kimilili Hauliers Limited and its sister companies (Fims Limited/Rift Petroleum Limited) on account of redundancy. Together with the claim, the Union filed a motion seeking stay orders maintaining the status quo, restraining the execution of the intended terminations, and restraining intimidation, harassment or declaration of redundancy pending hearing. The Respondents filed a Notice of Preliminary Objection and a replying affidavit sworn by Francis Osoro Ondera, and the motion was heard on 8 February 2016. Applying the Giella v Cassman Brown principles, the Court found that the Union had neither demonstrated a prima facie case with a probability of success nor established that irreparable harm would befall its members if the orders were declined. It further noted that the alleged intended redundancy had been raised in November/December 2015 but the Union had shown no action taken by the Respondents since. The Court held that any unlawful action by the Respondents would attract adequate statutory remedies, including reinstatement or compensation under section 49 of the Employment Act, 2007. It also criticised the incongruence between the relief sought in the claim and in the motion, describing the orders as in vacuo and the motion as incoherent, and urged strict compliance with pleading standards under the Industrial Court (Procedure) Rules, 2010. The motion filed on 11 December 2015 was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the Union satisfied the Giella v Cassman Brown principles for interlocutory injunctive relief

Holding

The motion was dismissed because the Union failed to demonstrate a prima facie case with probability of success or irreparable harm, and had not shown the Respondents had acted on the alleged intended redundancy in the intervening period.

Reasoning

The Court applied the established Giella v Cassman Brown criteria for injunctions. It noted the alleged intended redundancy was said to have been mooted in November/December 2015, over two months earlier, yet the Union adduced no evidence that the Respondents had taken any steps towards it. Without proof of a prima facie case or irreparable harm, the application could not succeed.

p. 2
02

Whether adequate alternative remedies existed rendering interim relief unnecessary

Holding

Yes - if the Respondents acted unlawfully, the Union and employees would have adequate remedies including reinstatement or compensation under section 49 of the Employment Act, 2007.

Reasoning

The Court reasoned that even if the Respondents took action not anchored in employment law, the statutory scheme provides remedies such as reinstatement and compensation. This weighed against granting interim injunctive orders, as the alleged harm would be remediable rather than irreparable.

p. 2
03

The coherence and quality of the Union's pleadings and relief sought

Holding

The remedies sought in the Memorandum of Claim and the motion were incongruent, the orders appeared to be in vacuo, and the motion was not coherent; courts should be strict with Unions over pleading standards.

Reasoning

The Court observed a mismatch between the relief claimed in the main suit and the interim orders sought, rendering the motion's orders in vacuo. It used the occasion to caution Unions to prepare concise, logical and coherent pleadings compliant with the Industrial Court (Procedure) Rules, 2010, describing the present motion as not coherent at all.

p. 2

Legal principles established

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  • The principles for grant of injunctive relief are those in Giella v Cassman Brown: prima facie case, irreparable harm, and balance of convenience
  • Where interim relief is declined, employees retain adequate statutory remedies including reinstatement or compensation under section 49 of the Employment Act, 2007
  • Unions must prepare pleadings that are concise, logical and coherent and comply with the Industrial Court (Procedure) Rules, 2010

Court orders

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  1. 1.The motion filed in Court on 11 December 2015 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Employment Actsection 49
  • Industrial Court (Procedure) RulesGeneral standards for pleadings

Cases cited (1)

  • Giella v Cassman Brown and Bros Co. Ltd
    (1973) EA 338
Jurisdiction invoked
Industrial Court jurisdiction over employment and labour relations disputes (Employment Act, 2007; Industrial Court (Procedure) Rules, 2010)

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, "Transport Workers Union (Kenya) v Kimilili Hauliers Co. Ltd & 2 others [2016] KEELRC 1640 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1640/eng@2016-02-26

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