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ELRCDismissedCause No. 846 of 2014· [2018] KEELRC 583 (KLR)

Banking, Insurance and Finance Union v National Bank of Kenya Ltd [2018] KEELRC 583 (KLR)

Employment and Labour Relations Court
23 November 2018
RSRadido Stephen
963 words in judgment
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The bottom line

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The Employment Court in Nairobi dismissed a union's attempt to protect a worker's property, ruling it never pleaded the property in its case and should have appealed instead.

What this practically means

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Executive summary

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This is Ruling No. 2 of the Employment and Labour Relations Court at Nairobi in Cause No. 846 of 2014 between the Banking, Insurance and Finance Union (claimant) and National Bank of Kenya Ltd (respondent), delivered by Radido Stephen, Judge, on 23 November 2018. The ruling dealt with two distinct applications filed by the Union on 10 May 2018 following the Court's dismissal on 13 April 2018 of an application seeking interim interdicts against the sale of property known as L.R. No. MN/1/11087 Mombasa belonging to a Grievant. The first sought review of the ruling on grounds that it contravened Article 27 of the Constitution, Section 5 of the Employment Act and international labour standards, and that it ignored averments in the Amended Memorandum of Claim. The second sought interim ex-parte orders staying the ruling and restraining sale of the property. The respondent filed a replying affidavit and the application was argued on 1 August 2018. The Court found that although leave had been given to amend the Memorandum of Claim, neither the amended nor the further amended pleading referred to the subject property, rendering the interdict application in vacuo. It held the review application frivolous, unmerited and an abuse of process, and that the proper course was an appeal; the stay application was a replica of the dismissed application and granting it would amount to the Court sitting on appeal over its own ruling. The application dated 10 May 2018 was dismissed with costs to the respondent, and the file was placed before the trial Court for further proceedings.

Key legal issues

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01

Whether the subject property had been pleaded so as to support the interdict and review

Holding

The Union never referred to the subject property in either the Amended Memorandum of Claim or the Further Amended Memorandum of Claim, so the application to interdict the property was in vacuo

Reasoning

The Court examined the file and found that despite the leave granted to amend the Memorandum of Claim on 23 October 2015, neither the amended nor the further amended pleading of 1 August 2017 referenced the property L.R. No. MN/1/11087 Mombasa. Relying on Kihara v Barclays Bank and Morris and Co. v Kenya Commercial Bank, it concluded an interdict over unpleaded facts is in vacuo. This finding defeated both the review and the stay applications.

p. 2
02

Whether review was the appropriate remedy for dissatisfaction with the ruling of 13 April 2018

Holding

The review application was frivolous, unmerited and an abuse of process; appeal was the proper course

Reasoning

The Court had already given detailed reasons for dismissing the earlier interdict application. The Union instead lodged a replica stay application and a review motion. The Court held that revisiting the same orders would amount to sitting on appeal over its own considered ruling, and that the correct remedy for a party aggrieved by a reasoned ruling is an appeal, not review.

p. 2

Legal principles established

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  • An application to interdict sale of property not pleaded in the claim is in vacuo
  • Review is not a substitute for an appeal from a considered ruling; where a party is dissatisfied with detailed reasons given by the Court, the proper course is to appeal

Court orders

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  1. 1.The application dated 10 May 2018 dismissed with costs to the Respondent
  2. 2.The file to be placed before the trial Court for further proceedings as earlier directed

Authorities

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Legislation

  • Constitution of KenyaArticle 27
  • Employment Act, 2007Section 5

Cases cited (2)

  • Kihara v Barclays Bank of (K) Ltd
    (2001) 2 EA 420 (CAK)
  • Morris and Co. Ltd v Kenya Commercial Bank Ltd
    (2003) 2 E.A. 600
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the cause (Cause No. 846 of 2014)

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, "Banking, Insurance and Finance Union v National Bank of Kenya Ltd [2018] KEELRC 583 (KLR)", Case Analysis (2018). Cause No. 846 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/583/eng@2018-11-23

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