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ELRCPartially AllowedClaimant's Notice of Motion dated 16th December 2020 (ELRC at Naivasha)· [2021] KEELRC 1733 (KLR)

Kenya Export Floriculture and Horticulture and Allied Workers Union v Vegpro (K) Limited [2021] KEELRC 1733 (KLR)

Employment and Labour Relations Court
4 May 2021
4,809 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court ordered Gorge Farm to disclose employment records for 970 dismissed workers while the union's unfair dismissal case proceeds to full hearing.

What this practically means

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Executive summary

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This interlocutory ruling by Hon. Lady Justice Hellen Wasilwa of the Employment and Labour Relations Court at Naivasha deals with a notice of motion dated 16th December 2020 by the Kenya Export Floriculture, Horticulture and Allied Workers Union against its employer, Gorge Farm (K) Limited. The union sought orders compelling the respondent to file employment records of 970 dismissed grievants and restraining the respondent from allowing any other union (including the interested party, the Kenya Plantation and Agriculture Workers Union) to recruit at Gorge Farm and Delamere Pivots or negotiate a recognition agreement or CBA. The union alleged unfair, unprocedural dismissal of 970 employees contrary to sections 41, 44 and 45 of the Employment Act and Articles 41 and 47 of the Constitution, and refusal to negotiate a CBA contrary to section 57 of the Labour Relations Act, despite recognition agreements signed in 2018. The respondent raised a preliminary objection on sub judice (citing Nairobi ELRC No. 378 of 2019 and section 6 of the Civil Procedure Act), misjoinder and abuse of process, sought the court's recusal for alleged bias from prior handling of the related matter, and opposed the injunction under Giella v Cassman Brown. The court dismissed the preliminary objection because no order barred it from proceeding and the Nairobi pleadings had not been availed to compare the suits. It declined to recuse itself. Finding prayers 1 and 2 tenable, the court certified the application urgent, ordered the respondent to file all employment records of the 970 grievants pending determination of the claim, and awarded costs in the cause. The injunction prayers were not granted at this stage and the main claim proceeds to hearing.

Key legal issues

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01

Sub judice / res judicata objection

Holding

Preliminary objection not merited

Reasoning

The respondent contended the suit duplicated Nairobi ELRC No. 378 of 2019 contrary to Section 6 of the Civil Procedure Act. The court held there was no order stopping it from proceeding and, critically, the pleadings of the Nairobi suit were not availed to enable a comparison. Without that material the court could not assess similarity, so the objection failed and was dismissed.

p. 6
02

Recusal for apprehended bias

Holding

Recusal not granted; the court proceeded with the application

Reasoning

The respondent alleged the court would be biased because it had handled ELRC No. 378 of 2019 and made adverse findings in a contempt application. The claimant argued no specific conduct was identified to meet the reasonable apprehension test. The court did not recuse itself and proceeded to determine the interlocutory application on its merits.

p. 5
03

Interim orders under Giella v Cassman Brown

Holding

Prayers 1 and 2 granted; disclosure of employment records and certification as urgent

Reasoning

Applying the interlocutory injunction principles, the court found prayers 1 and 2 tenable because they would give the court a clearer picture of the issues, including the contested claim of unfair dismissal of 970 employees. The mandatory-type injunctions (prayers 3 and 4) were not granted at this stage. The orders issued run pending the hearing and determination of the claim.

p. 6

Legal principles established

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  • A preliminary objection on sub judice cannot be sustained where the pleadings of the previously instituted suit have not been placed before the court to assess similarity

Court orders

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  1. 1.The application certified as urgent and heard ex parte with service dispensed with in the first instance
  2. 2.An interim order directing the respondent to file in court all employment records in respect of the 970 employees listed as grievants, pending the hearing and determination of the claim
  3. 3.Costs in the cause
  4. 4.The respondent's preliminary objection dismissed

Authorities

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Legislation

  • Labour Relations Actsections 4, 5, 57(1), 80(1)
  • Employment Actsections 41, 44(3), 45, 54(5)
  • Constitution of Kenya, 2010Articles 10, 36, 41, 47, 50(1)
  • Civil Procedure Act (Cap 21)Section 6
  • Civil Procedure Rules, 2010Order 1 Rule 9; Order 2 Rule 15(1)
  • Universal Declaration of Human RightsArticle 10
  • Gazette Notice No. 157 (Kenya Export Floriculture, Horticulture and Allied Workers Union Deduction of Union Dues Order, 2018)

Cases cited (9)

  • Giella v Cassman Brown
    [1973] EA 358
  • Mukhisa Biscuit Manufacturing Company Limited v West End Distributors Ltd
    [1969] EA 696
  • Aviation and Allied Workers Union v Kenya Airways Limited & 3 others
    [2015] eKLR
  • John Mugo Gachuki v Ne Nyamakima Co Ltd
    [2011] eKLR
  • Hon. Lady Justice Kalpana H. Rawal v Judicial Service Commission and others
    [2016] eKLR
  • R. v. S. (R.D.)
    [1997] 3 SCR 484
  • Standard Chartered Financial Service Limited & 2 others v Manchester Outfitters (Suiting Division) Limited now known as King Woolen Mills Limited & 2 others
    [2016] eKLR
  • Kaplan & Stratton v L.Z. Engineering Construction Limited & 2 Others
    Civil Application 115 of 2000
  • Republic v Paul Kihara Kariuki, Attorney General & 2 others ex parte Law Society of Kenya
    [2020] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act (employment dispute); Article 162(2)(a) jurisdiction implied

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 Export Floriculture and Horticulture and Allied Workers Union v Vegpro (K) Limited [2021] KEELRC 1733 (KLR)", Case Analysis (2021). Claimant's Notice of Motion dated 16th December 2020 (ELRC at Naivasha). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1733/eng@2021-05-04

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