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ELRCOtherCause No. 45 of 2019· [2020] KEELRC 548 (KLR)

Kenya Engineering Workers Union v Hebatullah Brothers Limited [2020] KEELRC 548 (KLR)

Employment and Labour Relations Court
7 August 2020
MOMaureen Onyango
1,867 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to fast-track a union's push to force a CBA signature, ruling the application duplicated the main claim and was too ambiguous.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Onyango J) determined an application dated 27 March 2020 by the Kenya Engineering Workers Union, the claimant, against Hebatullah Brothers Limited. The union sought orders deeming fit and adopting the parties' agreement on all disputed issues, acceptance of an Amended Memorandum of Claim, and leave for parties to file written submissions or an expedited hearing on the respondent's alleged refusal to sign a duly negotiated collective bargaining agreement, which the union said had been in arrears for 23 months. The respondent, which filed no replying affidavit and relied on written submissions, opposed the application as an abuse of process, arguing that the union had not made full disclosure of pending litigation (Cause 761 of 2019) filed by a rival union, the Kenya Glass Workers Union, concerning recognition and level of representation, and that compelling a CBA applicable to all employees would prejudice its defence in that cause, relying on Weldon v Neal and the duty of full and fair disclosure on ex parte applications. The court noted that the prayers in the application were in substance the reliefs in the main claim, and that there was a dispute over the signing of the CBA, with the respondent asserting it had offered to sign despite the claimant having only 25 employees. Finding ambiguity in the prayers, the court directed that the matter proceed to hearing of the claim as originally filed. The application was otherwise not granted and no costs order was made.

Key legal issues

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01

Whether the court should adopt the parties' agreement and compel signature of the CBA at the interlocutory stage

Holding

The court declined to determine the issue on the application, finding the prayers ambiguous and the matters raised to be the substantive issues in the claim

Reasoning

The court observed that the prayers in the application were in substance the reliefs in the main claim, including compulsion to sign the negotiated CBA. With the respondent asserting it had not refused to sign and there being a dispute over representation involving a rival union in a separate cause, the court found the prayers ambiguous and directed the claim be heard as originally filed rather than determine the matter on the application.

p. 3
02

Whether the proposed amendment would prejudice the respondent in pending litigation

Holding

The respondent argued prejudice based on Weldon v Neal, but the court did not rule on the amendment, instead directing the original claim proceed to hearing

Reasoning

The respondent submitted, relying on Weldon v Neal and the duty of full disclosure on ex parte applications, that amending the claim to seek a CBA applicable to all employees would prejudice its defence in Cause 761 of 2019 concerning level of representation. The court did not expressly determine this argument, resolving the application instead by directing hearing of the original claim.

p. 2

Legal principles established

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  • Where the prayers in an interlocutory application are ambiguous and duplicate the substantive reliefs in the claim, the court will direct the claim proceed to hearing as originally filed

Court orders

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  1. 1.That the matter proceeds to hearing of the claim as originally filed so that the claimant can articulate its issues both in the claim and in the application
  2. 2.Orders accordingly

Authorities

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Legislation

  • Labour Relations ActSection 57
  • Labour Relations ActSection 59
  • Employment ActSection 90
  • Constitution of KenyaArticles 36, 41, 47, 48, 159(2)(d)
  • Employment and Labour Relations Court ActSection 3
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (2)

  • Weldon v Neal
    [1887] 19 Q.B.D. 394
  • The King v The General Commissioners for the Purposes of Income Tax Acts for the District of Kensington: Exparte Princess Edmond De Pligac
    (1917) 1 KB 486
Jurisdiction invoked
Employment and Labour Relations Court Act; Labour Relations Act, 2007 (Section 57); Employment Act, 2007 (Section 90)

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 Hebatullah Brothers Limited [2020] KEELRC 548 (KLR)", Case Analysis (2020). Cause No. 45 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/548/eng@2020-08-07

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