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ELRCOtherNot stated in judgment· [2019] KEELRC 2417 (KLR)

Kenya Engineering Workers Union v Bhachu Industries Limited [2019] KEELRC 2417 (KLR)

Employment and Labour Relations Court of Kenya
28 January 2019
HWHellen Wasilwa
2,185 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 discharged interim reinstatement orders because the union's claim was mainly for money, not to restore jobs.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court (Hellen Wasilwa, J) on two interlocutory applications: the Claimant union's Notice of Motion dated 16 March 2018 seeking interim reinstatement of its assistant chief shop steward, Dominic Kyalo Nthiani, and four other members allegedly locked out unlawfully, and the Respondent employer's Notice of Motion dated 12 April 2018 seeking to discharge, vary or set aside the ex parte interim orders issued on 19 March 2018. The Claimant alleged the grievants were locked out on account of their union activities without notice to the union, the Ministry of Labour or the grievants, contrary to the Employment Act 2007, the Labour Relations Act 2007 and the CBA dated 31 March 2017, and that a reported trade dispute had not been conciliated. The Respondent countered that the five grievants were lawfully dismissed for poor workmanship on a trailer costing it KShs 2,500,000 in reworking, were paid terminal dues, and that the ex parte orders were obtained through material non-disclosure and without service. The Respondent also challenged the Claimant's locus standi and the competence of the Claimant's affidavits, and argued the claim was premature as conciliation had not been exhausted. Without making express findings on those objections, the court held that because the prayers in the main claim were monetary in nature, it would not be meritorious for the grievants to continue working pending trial. The court discharged the interim orders, directed the parties to proceed with the main claim, and ordered costs in the cause.

Key legal issues

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01

Whether to continue interim reinstatement orders pending trial

Holding

The interim orders were discharged and parties directed to proceed to trial.

Reasoning

The court noted the ex parte orders restrained victimisation by way of termination, dismissal, redundancy and lockout. The Applicants said they were verbally locked out on redundancy grounds. However, since the substantive relief in the main claim was monetary, keeping the grievants working pending the hearing would not be meritorious; the interim orders were discharged.

p. 3
02

Material non-disclosure and failure to serve ex parte orders

Holding

Raised by the Respondent but the court's decision rested on the nature of the prayers sought, not expressly on non-disclosure.

Reasoning

The Respondent argued the Claimant failed to disclose the grievants' dismissal and terminal dues payment, and failed to serve the orders, relying on Order 40 rule 4(3) authorities. The court did not make explicit findings on these submissions, choosing instead to discharge the orders on the monetary-relief rationale.

p. 3

Legal principles established

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  • Where the principal relief claimed is monetary, an interim order of reinstatement/continued employment pending hearing is not merited and interim restraining orders will be discharged.

Court orders

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  1. 1.Interim orders issued on 19 March 2018 restraining the Respondent discharged
  2. 2.Parties directed to proceed with the main claim
  3. 3.Costs in the cause

Authorities

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Legislation

  • Industrial Court ActSection 12
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 17(1)(3)(7)(8) and (10)
  • Labour Relations Act 2007Sections 40, 55(1), 62, 67, 68, 69, 74
  • Employment Act 2007Sections 35(1), 41(1)
  • Civil Procedure Rules 2010Order 40 rule 4(3)
  • Constitution of Kenya 2010Article 47

Cases cited (12)

  • Immaculate Wambia Mungai vs. Fredrick Mwai Mwihia
    [2017] eKLR
  • Nyayo Embakassi Residents Association & Another vs. National Social Security Fund & Another
    [2015] eKLR
  • Kazungu Moli Chogo & Others vs. Perihan Torun & Others
    [2015] eKLR
  • Kazungu Ngari Yaa vs. Mistry V Naran Mulji & Company
    [2014] eKLR
  • Gotv Kenya Limited vs. Royal Media Services Limited & 2 Others
    [2015] eKLR
  • Cyrus Gakuru Gitari vs. Magondu Gakuru
    [2008] eKLR
  • Kenya National Union of Nurses vs. Attorney General Acting & Another
    [2012] eKLR
  • Ufanisi Capital and Credit Limited vs. Stephen Kipkenda Kiplagat & 2 Others
    [2011] eKLR
  • East African Portland Cement Company Limited vs. Attorney General & Another
    [2013] eKLR
  • Giella vs. Cassman Brown
    [1973] EA 358
  • Galaxy Paints Company Limited vs. Falcon Guards Limited
    [2000] eKLR
  • Kenya Airways Limited vs. Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
Jurisdiction invoked
Section 12 of the Industrial Court (Employment and Labour Relations Court) Act and Section 74 of the Labour Relations Act 2007; Employment and Labour Relations Court (Procedure) Rules 2016

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 Engineering Workers Union v Bhachu Industries Limited [2019] KEELRC 2417 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2417/eng@2019-01-28

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