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ELRCPartially AllowedNot stated in judgment (substantive suit filed 28th September 2016)· [2018] KEELRC 1210 (KLR)

Kenya Plantation and Agricultural Workers Union v Kerio Valley Development Authority [2018] KEELRC 1210 (KLR)

Employment and Labour Relations Court of Kenya
16 May 2018
MMM. Mbaru
2,813 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed an injunction halting a retirement programme because the employer never notified the union directly before changing employment terms.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nakuru (M. Mbaru, J) determined two interlocutory applications in a suit filed in September 2016 between a trade union claimant and a respondent employer ('the Authority'), concerning a pending CBA and the respondent's proposed Voluntary Early Retirement (VER) programme affecting 300 employees. By a Notice of Motion dated 21st February 2018, the claimant sought to restrain the respondent from implementing the VER or a restructuring programme pending hearing, arguing the VER was a disguised redundancy lacking consultation and aimed at frustrating the CBA. Interim restraining orders were issued on 22nd February 2018. The respondent applied on 19th March 2018 to set aside the ex parte orders for material non-disclosure, asserting it had consulted over 300 employees including the Chief Shop Steward, that the Deputy Registrar lacked jurisdiction to extend the orders, and that employees had voluntarily opted for the VER. The court held that a Replying Affidavit was the prerequisite response to the claimant's application and that the respondent's 'Response to the Application' offended Rule 17 of the ELRC (Procedure) Rules, 2016. On disclosure, the respondent's letter of 8th February 2018 disclosed only an intention with no commencement date; the presence of the Chief Shop Steward at meetings could not substitute direct notification of the union where a CBA term was in issue and over 300 employees faced exit. The court applied authorities on material non-disclosure and on the impropriety of counter-applications at the interlocutory stage. The respondent's application was found without merit and declined; the interim orders were confirmed (save for the variation made on 20th April 2018), and the matter was listed for priority hearing in June 2018, with costs in the cause.

Key legal issues

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01

Material non-disclosure by the claimant in obtaining the ex parte orders of 22nd February 2018

Holding

No material non-disclosure established; the interim orders were justified

Reasoning

The respondent's letter of 8th February 2018 disclosed only an intention to implement a VER with no commencement or end date, which formed the bona fide basis of the claimant's application. Although meetings were held on 7th and 9th February 2018 attended by the Chief Shop Steward, the shop steward's presence could not be treated as absolute authority to represent the union, especially given the ongoing suit concerning the exit of over 300 employees. The union should have been engaged directly.

p. 3
02

Whether the ex parte orders should be set aside and whether the respondent's counter-application was procedurally proper

Holding

The counter-application dated 19th March 2018 was without merit and was declined; concerns should have been raised in a Replying Affidavit

Reasoning

The respondent had entered appearance in October 2016 but never filed a defence or response to the claim, and responded to the claimant's Notice of Motion with a 'Response to the Application' contrary to Rule 17 of the Court Rules, which requires a Replying Affidavit. Where a respondent finds an application problematic, good practice is to file a Replying Affidavit addressing the subsisting application before making counter-applications.

p. 4
03

Proper response format to an interlocutory application under the ELRC (Procedure) Rules, 2016

Holding

A Replying Affidavit is the prerequisite; the respondent's Response to the Application offended Rule 17(1) and (9)

Reasoning

Rule 17(9) permits a party to respond by grounds of opposition verified by an affidavit. The respondent's unsupported 'Response to the Application' could not substitute for averments on oath, and no defence had been filed since appearance on 13th October 2016 without leave of the court.

p. 2

Legal principles established

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  • Where a matter relating to a negotiated term in a CBA is in issue, the trade union must be notified directly before processes are initiated to vary terms and conditions of employment; the presence of a Chief Shop Steward is not absolute authority to represent the union's interests
  • A respondent to an interlocutory application should address the pending application (by Replying Affidavit) before filing a counter-application; there is no useful legal purpose in filing a counter-application
  • An interlocutory injunction is an equitable remedy meant to shield a party against violation of rights, not to intimidate or oppress; it will be discharged where the grantee's conduct does not meet the court's approval
  • Where a party fails to disclose material facts when obtaining ex parte orders, any advantage gained is taken away and the orders will be set aside

Court orders

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  1. 1.The respondent's application dated 19th March 2018 seeking to set aside the ex parte orders of 22nd February 2018 is found without merit and is declined
  2. 2.The interim orders of 22nd February 2018 restraining the respondent from proceeding with the VER programme are confirmed, save for the variation of the interim orders on 20th April 2018
  3. 3.Parties to be allocated a hearing date on priority and within the month of June 2018
  4. 4.Costs in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 17(1) and (9); Rules 13 and 14; Rule 37
  • Constitution of KenyaArticles 47 and 48; Article 232(1)
  • Employment Act(2007) – referenced in the respondent's letter of 8th February 2018

Cases cited (5)

  • Aviation & Airport services Workers Union (K) versus Kenya Airport Authority & Another
    (2014) eKLR
  • Ruaha Concrete Co. Ltd et al versus Paramount Universal Bank Ltd et al
    HCCC No. 430 of 2002
  • Kenya Plantation & Agricultural Workers Union versus P. J. Dave Flowers Ltd
    Cause No. 101 of 2015 (Nakuru)
  • Enock O Kinara versus Postal Corporation
    [2017] eKLR
  • Mobile Kitale Service Station versus Mobil Oil Kenya Limited & Another
    (2004) eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016; the court exercised its interlocutory jurisdiction over the pending employment claim (specific enabling constitutional/statutory article not stated)

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 Plantation and Agricultural Workers Union v Kerio Valley Development Authority [2018] KEELRC 1210 (KLR)", Case Analysis (2018). Not stated in judgment (substantive suit filed 28th September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1210/eng@2018-05-16

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