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ELRCDismissedELRC Cause (Nairobi) - Application dated 31st July 2019· [2020] KEELRC 261 (KLR)

Communications Workers Union v Camusat Kenya Limited [2020] KEELRC 261 (KLR)

Employment and Labour Relations Court
6 November 2020
3,424 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to stop Wananchi Online's redundancy of six union members, ruling that money could compensate them if the layoffs prove unlawful.

What this practically means

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Executive summary

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The Communication Workers Union of Kenya filed an application dated 31st July 2019 seeking conservatory orders to stop an ongoing redundancy of six of its members by the Respondent employer, alleging the process contravened Sections 40, 41, 44 and 45 of the Employment Act, that no proper notice was issued and no severance pay provided, and that the redundancy targeted the members' union activities. The Respondent opposed, citing financial constraints from a decline in fibre telecommunication connections and reduced Zuku contracts, and contended that affected employees had been informed, paid their dues including severance and notice pay, and cleared; further that the grievants were not union members and that the interim orders were obtained through material non-disclosure. The court framed two issues: the propriety of the application and the threshold for injunctive orders. It held that failure to cite legal provisions was not fatal under Order 51 rule 10, relying on Mbaya Nzulwa, and that the union had locus standi under Articles 22(2)(d) and 258(2)(d) of the Constitution and section 62 of the Labour Institutions Act. However, applying Giella v Cassman Brown, the court found no prima facie case since some grievants had already been paid and cleared uncontroverted; damages would adequately compensate given the compensation claim; and reinstatement at interlocutory stage requires special circumstances. The balance of convenience favoured allowing the redundancy to proceed with propriety determined at the hearing. The application was dismissed with costs in the cause, delivered virtually on 6th November 2020 per COVID-19 directions.

Key legal issues

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01

Whether failure to cite the legal provisions supporting the application invalidates it

Holding

Failure to cite the provisions is not fatal; no application shall be defeated on a technicality or want of form that does not affect the substance

Reasoning

Order 51 rule 10(1) requires the provision relied on to be stated, but rule 10(2) bars defeating an application for want of form. The court, relying on Mbaya Nzulwa v Kenya Power & Lighting Co. Ltd, held that a court's duty to apply the correct law is not confined to what parties cite; the dereliction by a party does not divest the court of jurisdiction to determine the complaint.

p. 4
02

Whether the trade union had locus standi to sue on behalf of the grievants

Holding

The Applicant had locus standi; it had registered the employees as members before filing, and Articles 22(2)(d), 258(2)(d) of the Constitution and section 62 of the Labour Institutions Act permit association representation

Reasoning

A letter dated 25th July 2019 from the Respondent acknowledged receipt of membership application forms for the named grievants, showing membership predicated the application. The Respondent's dispute went to recognition, not membership. Constitutional and statutory provisions allow an association to act for one or more of its members where rights are threatened.

p. 5
03

Whether the Applicant met the Giella v Cassman Brown threshold for injunctive/conservatory orders

Holding

The threshold was not met: no prima facie case because some grievants had been paid and cleared; damages would be adequate; balance of convenience favoured the Respondent

Reasoning

Some grievants had received dues and cleared before the claim was instituted, an uncontroverted fact, so orders would be granted in vain. Interlocutory reinstatement is only available in special circumstances. Since the Applicant seeks compensation for unlawful termination and terminal benefits, damages would remedy any injury. Procedures and validity of the redundancy are matters for evidence at the hearing.

p. 5

Legal principles established

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  • Failure to cite the legal provision under which an application is brought is not fatal to the application under Order 51 rule 10 of the Civil Procedure Rules
  • A trade union has locus standi to institute proceedings on behalf of its members under Articles 22(2)(d) and 258(2)(d) of the Constitution and section 62 of the Labour Institutions Act
  • An employer may carry out a redundancy provided it complies with the law and has a valid reason; propriety of the redundancy is a matter for evidence at the hearing

Court orders

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  1. 1.Dismissal of the Claimant's application dated 31st July 2019 seeking conservatory orders against the redundancy of six employees
  2. 2.Costs shall be in the cause
Jurisdiction invoked
Articles 22(2)(d), 258(2)(d) of the Constitution; Section 62 of the Labour Institutions Act; Employment and Labour Relations Court Act

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, "Communications Workers Union v Camusat Kenya Limited [2020] KEELRC 261 (KLR)", Case Analysis (2020). ELRC Cause (Nairobi) - Application dated 31st July 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/261/eng@2020-11-06

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