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ELRCDismissedCause No. 1452 of 2015 (Ruling No. 2)· [2018] KEELRC 588 (KLR)

Kenya Concrete, Structural, Ceramic Tiles, Wood Ply & Interior Designs Workers Union v China Wu Yi Company Limited [2018] KEELRC 588 (KLR)

Employment and Labour Relations Court of Kenya
16 November 2018
RSRadido Stephen
1,364 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A company that skipped multiple court dates could not later undo orders made in its absence—the Employment Court dismissed its application with costs.

What this practically means

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Executive summary

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The Union filed a Memorandum of Claim on 19 August 2015 alleging refusal to sign a recognition agreement contrary to section 54 of the Labour Relations Act, refusal to deduct and remit union dues contrary to section 19 of the Employment Act and section 48 of the Labour Relations Act, and intimidation and harassment of employees. It filed a motion seeking orders compelling deduction and remittance of union subscriptions and restraining harassment. The orders were issued on 19 August 2015 and, after a series of mentions at which the Respondent was variously absent, unrepresented or seeking adjournments, were confirmed on 7 October 2015 when neither the Respondent nor its advocate attended. In January 2016 the Respondent applied for stay of execution, an interpretation of the orders, and their unconditional setting aside, arguing it had not been heard before confirmation. Radido J reviewed the chronology and found the Respondent had been served and represented on 11 September and 2 October 2015, and had no explanation for its absence on 7 October 2015. The court held the Respondent was afforded more than adequate opportunity to be heard and could not benefit from setting aside the orders. The court also observed it was not its province to examine the propriety of its own orders, that mandate lying elsewhere in the judicial hierarchy. The application of 15 January 2016 was dismissed with costs to the Union.

Key legal issues

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01

Whether the Respondent was denied a fair hearing before confirmation of the orders of 19 August 2015

Holding

The Respondent was afforded more than adequate opportunity to be heard; its application to set aside the orders failed because it could not explain its non-attendance on 7 October 2015.

Reasoning

The court traced the record from service on 19 August 2015 through adjournments on 2 and 4 September 2015, service of notices to show cause on the Respondent's chief officers, and appearance by counsel on 11 September and 2 October 2015. Having been represented on two dates and never explaining its absence and that of its advocate on 7 October 2015, the Respondent could not claim it was unheard.

p. 3

Legal principles established

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  • A party who is afforded an opportunity to be heard but fails to attend Court without explanation cannot benefit from an order setting aside the orders made in its absence.
  • A first-instance court does not examine the propriety of its own orders on an application of this nature; that mandate lies elsewhere within the judicial hierarchy.

Court orders

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  1. 1.The Respondent's application filed in Court on 15 January 2016 is dismissed with costs to the Union

Authorities

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Legislation

  • Labour Relations Actsection 54
  • Labour Relations Actsection 48
  • Employment Actsection 19
Jurisdiction invoked
Article 162(2) of the Constitution (Labour and industrial relations jurisdiction); the ruling does not state the provision expressly

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, "Kenya Concrete, Structural, Ceramic Tiles, Wood Ply & Interior Designs Workers Union v China Wu Yi Company Limited [2018] KEELRC 588 (KLR)", Case Analysis (2018). Cause No. 1452 of 2015 (Ruling No. 2). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/588/eng@2018-11-16

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