Kenya Union of Commercial, Food and Allied Workers v Mama Watoto Supermarket & another [2020] KEELRC 1542 (KLR)
The bottom line
#Kenya's Employment Court ordered Naivas to deduct union dues and sign a recognition agreement, ruling staff re-engagement through a third party could not defeat workers' freedom of association.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ex parte interim orders of O. Makau J. should be set aside on the ground of material non-disclosure
- 2.Whether the applicant satisfied the requirements for grant of interlocutory orders in Giella vs Cassman Brown Limited (prima facie case, irreparable harm, balance of convenience)
Key legal issues
#Whether the ex parte interim orders were obtained through material non-disclosure
No - all facts were fully disclosed to O. Makau J. before the interim orders were granted
The court read the Notice of Motion dated 22nd November 2019 together with the grounds on its face and the supporting affidavit of Mr. Vackson Khalumi. It found that all facts deposed to by the respondent were fully disclosed to O. Makau J. at Nairobi before he granted the interim orders. The allegations of gross material non-disclosure, misrepresentation and falsehoods therefore lacked merit and the setting-aside application failed.
Whether the applicant had a prima facie case warranting interlocutory relief
Yes - the respondent's conduct of terminating contracts and having employees sign new contracts with a third party without valid reason or statutory procedure was prima facie prompted by the union's recruitment and demand for a recognition agreement
Applying the Giella vs Cassman Brown principles, the court held the respondent's conduct prima facie denoted termination and fresh employment contrary to Sections 40, 43, 44 and 45 of the Employment Act, 2007. The timing - following recruitment of 76 of 110 unionisable employees and the check-off demand - supported a prima facie finding of subterfuge to defeat freedom of association under Articles 36 and 41 of the Constitution and Section 5 of the Labour Relations Act.
Whether the court should interfere with the 1st respondent's management prerogative
The court would not interfere with the management prerogative to involve a third party in staff management, but the termination of contracts and re-engagement without valid reason and procedure was a distinct matter the court could restrain
The court distinguished between legitimate management restructuring (which it would not disturb) and a unilateral termination of employment without the valid reasons and procedures required by Sections 36, 40, 43, 44 and 45 of the Employment Act, 2007. The latter attracted the court's intervention through mandatory injunctions on check-off deductions and execution of the recognition agreement.
Legal principles established
#- Conduct that constitutes termination of employment and commencement of new employment with a third party must be supported by a valid reason and follow statutory procedure under the Employment Act, 2007
- Requirements for interlocutory relief: prima facie case, irreparable harm not compensable by damages, and balance of convenience
Court orders
#- 1.Pending the hearing and determination of the suit, a mandatory injunction is issued for the 1st respondent to commence deducting union dues from the 76 employees of the 1st respondent notwithstanding any management arrangements the 1st respondent has put in place with the 2nd respondent
- 2.A mandatory injunction is issued compelling the 1st respondent to follow the provisions of Section 54(1) of the Labour Relations Act, 2007 by signing the draft Recognition Agreement between the 1st respondent and the Applicant union
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 36 and 41 of the Constitution of Kenya 2010; Sections 48 and 54(1) of the Labour Relations Act, 2007; Sections 36, 40, 43, 44 and 45 of the Employment Act, 2007
Relief refused
#Prayer (a) - restraint of the 1st respondent from terminating services of employees on 26th November 2019 on grounds of alleged change in staff management
The court found it would not interfere in the management prerogative of the 1st respondent to have a third party involved in management of its staff, but granted instead mandatory injunctions on check-off dues and the recognition agreement
The 1st and 2nd respondents' application dated 29th November 2019 seeking to set aside the interim orders and dismiss the applicant's application
The court found the allegations of gross material non-disclosure lacked merit, as all facts deposed to by the respondent were fully disclosed to O. Makau J. before interim orders were granted
Costs
No costs order appears in the judgment
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the court makes the following orders
Pending the hearing and determination of the suit, a mandatory injunction is issued for the 1 st respondent to commence deducting union dues from the 76 employees of the 1st respondent notwithstanding any management arrangements the 1 st respondent has put in place with the 2nd respondent.
Further, a mandatory injunction is issued compelling the 1 st respondent to follow the provisions of Section 54(1) of the Labour Relations Act, 2007 by signing the draft Recognition Agreement between the 1st respondent and the Applicant union.
It is the finding of this court that the allegations of gross material non-disclosure lack merit.
The conduct embarked upon by the respondent primafacie denotes a termination of employment and commencement of new employment.
Issues in the judgment
#The judgment states interim orders were granted on 22nd November 2019 in one paragraph and on 25th November 2019 in another, an internal inconsistency on the date of the ex parte orders
The case number of the suit is not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Mama Watoto Supermarket & another [2020] KEELRC 1542 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 22nd November 2019 and Notice of Motion dated 29th November 2019 heard together). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1542/eng@2020-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.