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ELRCPartially AllowedNotice of motion dated March 16, 2023 in a memorandum of claim dated March 16, 2023· [2023] KEELRC 1268 (KLR)

Kenya Chemical Workers Union v Kenya Flexogravure Limited (Cause E022 of 2023) [2023] KEELRC 1268 (KLR)

Employment and Labour Relations Court
18 May 2023
DNDavid Nderitu
1,555 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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The Claimant, a trade union, moved the Employment and Labour Relations Court at Nakuru by notice of motion dated March 16, 2023 seeking temporary and permanent injunctions restraining the Respondent, a manufacturer of plastic products, from interfering with the employment of 21 members allegedly locked out of work on March 13, 2023, and an order that the employees access the premises and continue working unconditionally. The application, brought under Section 80 of the Labour Relations Act, Order 40 Rule 4 of the Civil Procedure Rules and Article 41(5) of the Constitution, was opposed by a replying affidavit of director Sonal Patel, who admitted the lockout, attributed it to harsh economic circumstances, and stated that a redundancy process was under way with an undertaking to pay all lawful dues. The Respondent did not file written submissions. Framing two issues - whether to injunct the Respondent and who should bear costs - the court applied Giella v Casman Brown and held that the Claimant had not established a prima facie case: the affected employees were unnamed and their union membership unauthenticated, and no irreparable damage incapable of compensation by damages was shown. The court observed that only a general notice of March 13, 2023 evidenced the redundancy process and suggested the Claimant may need to amend its claim to identify the union members and their terms of service. Nevertheless, the court issued a narrower interim injunction restraining termination of the affected employees except in accordance with the law, ordered continued payment of their monthly salaries as at the lockout date, allowed the Claimant liberty to move the court on default, and ordered costs in the cause. Judgment delivered virtually at Nakuru on May 18, 2023 by David Nderitu, Judge.

Key legal issues

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01

Whether a temporary injunction should issue restraining the Respondent from interfering with the employment of locked-out employees

Holding

Injunction refused in the terms sought; a narrower interim injunction issued restraining unlawful termination on redundancy

Reasoning

Applying Giella v Casman Brown, the court found no prima facie case because the affected employees were unnamed and their union membership unauthenticated. No irreparable damage incapable of compensation by damages was demonstrated. The Respondent admitted the lockout and a redundancy process was under way, but only a general notice was on record to show how far that process had gone. The court fashioned narrower interim relief protecting employees from unlawful termination and preserving salary payments.

p. 3
02

Whether the Respondent's lockout and redundancy process complied with the law

Holding

The court found the redundancy process insufficiently evidenced and cautioned the Respondent to follow the law and pay all dues

Reasoning

The Respondent admitted locking out its 21 employees on economic grounds, intending redundancy. Other than a general notice dated March 13, 2023 copied to the Sub-county labour officer, nothing on record showed how far the redundancy process had progressed. The court cautioned the Respondent to continue paying monthly dues and allowances, follow the law in effecting redundancy, and pay all terminal dues at the end of a lawful process.

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case and irreparable damage incapable of compensation by damages, per Giella v Cassman Brown

Court orders

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  1. 1.An interim order of injunction restraining the Respondent from terminating the affected employees on redundancy or in any other manner except in accordance with the law, pending hearing and determination of the cause
  2. 2.The Respondent ordered to pay the affected employees their monthly salaries payable as at the time of the lockout on March 13, 2023, unless lawfully terminated on redundancy or otherwise
  3. 3.In default of (a) and (b), the Claimant at liberty to move the court as appropriate
  4. 4.Costs of the application in the cause

Authorities

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Legislation

  • Labour Relations ActSection 80
  • Civil Procedure RulesOrder 40 Rule 4
  • Constitution of KenyaArticle 41(5)

Cases cited (1)

  • Geilla v Casman Brown Co Ltd
    (1973) EA 358
Jurisdiction invoked
Article 41(5) of the Constitution; Section 80 of the Labour Relations Act; Order 40 Rule 4 of the Civil Procedure Rules

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 Chemical Workers Union v Kenya Flexogravure Limited (Cause E022 of 2023) [2023] KEELRC 1268 (KLR)", Case Analysis (2023). Notice of motion dated March 16, 2023 in a memorandum of claim dated March 16, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1268/eng@2023-05-18

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