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ELRCDismissedCause No 467 of 2018· [2019] KEELRC 2451 (KLR)

Kenya Shipping Clearing and Freight Logistics and Valuers Union v Bollore Transport & Logistics (K) Ltd & 2 others [2019] KEELRC 2451 (KLR)

Employment and Labour Relations Court
24 January 2019
LNLinnet Ndolo
1,159 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa (Linnet Ndolo, Judge) dealt with three separate applications by the 1st, 2nd and 3rd Respondents seeking to be removed from a claim by the Claimant Union for redundancy payments arising from outsourcing arrangements at the Mombasa container terminal. The 1st Respondent argued it was improperly joined because the outsourcing contract was exclusively between it and the 2nd Respondent, who remained the employer responsible for wages. The 2nd Respondent argued that a June 2018 variation brought in the 3rd Respondent to handle the Mombasa container terminal, ending its relationship with the Claimant's members. The 3rd Respondent contended the claim disclosed no reasonable cause of action against it and was frivolous, vexatious and an abuse of process. The court noted the existence of two separate outsourcing agreements, both directly impacting the Claimant's members, generating rights and obligations for all parties, and disputed sharply among the Respondents. Holding that determining the impact of these agreements on accrued and subsisting rights required a full trial, the court found that allowing any Respondent to disembark would cause a miscarriage of justice. All three applications were declined, with costs in the cause.

Key legal issues

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Whether respondents to a redundancy claim arising from outsourcing agreements could be struck out before trial

Holding

All three applications were declined because the outsourcing agreements directly impacted the Claimant's members and generated rights and obligations disputed among the parties

Reasoning

The court found that there were outsourcing agreements between the 1st and 2nd Respondents and between the 1st and 3rd Respondents, both directly affecting the Claimant's members deployed to work for the 1st Respondent. There were sharp disagreements among the Respondents on the extent and import of the rights and obligations generated. Determining these required evidence at a full trial, so removing any party would occasion a miscarriage of justice.

p. 3

Legal principles established

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  • Where multiple applications to remove parties raise disputes on rights arising from outsourcing agreements that directly affect the claimant's members, the proper course is a full trial rather than striking out parties

Court orders

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  1. 1.The Respondents' applications dated 23rd August 2018, 4th October 2018 and 15th November 2018 are declined
  2. 2.The costs of the applications will be in the cause
Jurisdiction invoked
Employment and Labour Relations Court (Labour Relations Act) - not expressly stated in the judgment

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 Shipping Clearing and Freight Logistics and Valuers Union v Bollore Transport & Logistics (K) Ltd & 2 others [2019] KEELRC 2451 (KLR)", Case Analysis (2019). Cause No 467 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2451/eng@2019-01-24

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