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ELRCDismissedNot stated in judgment· [2023] KEELRC 1420 (KLR)

Amalgamated Union of Kenya Metal Workers v CMC Motors Group Limited (Cause E350 of 2023) [2023] KEELRC 1420 (KLR)

Employment and Labour Relations Court
31 May 2023
NMNzioki wa Makau
1,555 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to urgently halt the redundancy of 169 employees, ruling the union had not provided enough evidence — but workers can still challenge the redundancy fully at the main hearing.

What this practically means

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Executive summary

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The Claimant Union moved the Court by Notice of Motion dated May 3, 2023 seeking to restrain the Respondent from declaring 169 employees redundant pending inter partes hearing, and to restrain threats, intimidation, victimisation or coercion against its members pending determination of the application. The Union argued that the redundancy notice dated April 24, 2023 gave only one day's notice, contrary to section 40(1)(a) of the Employment Act and Clause 17 of the CBA, which entitled the Union to 15 days to respond. The Respondent opposed, contending that only 84 employees were unionisable, that consultations had occurred, that the impugned letter was merely a notice of intention, that there was no evidence of intimidation, and that the orders sought were incapable of grant. On the preliminary objection that the dispute should have gone to conciliation, the Court held that the urgency of the matter made referral futile, since the redundancy would have been fully effected before a Conciliator could be appointed. The Court noted it could not verify compliance with section 40 because the Claimant did not attach all the redundancy letters showing the affected employees and their positions. Applying dicta from Churchill Ongalo v Kenya Kazi Security Services Limited, the Court held that the substantive legality of the redundancy could only be determined after a full hearing. The motion was dismissed with costs in the cause, affected parties being left to pursue remedies in the substantive claim.

Key legal issues

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01

Exhaustion of conciliation remedy

Holding

The Court was properly seized of the urgent dispute without prior conciliation

Reasoning

The certificate of urgency showed redundancy was to take effect the next day. A referral to a Conciliator appointed by the Minister would have been futile because the redundancy would have been fully effected before the conciliator was appointed. Urgent judicial intervention was therefore appropriate and the exhaustion objection failed.

p. 2
02

Compliance with section 40 Employment Act notice

Holding

The material placed before the Court was insufficient to establish non-compliance or justify halting the redundancy

Reasoning

The Court noted a notice to a non-unionisable employee must be copied to the Labour Officer under section 40(1)(b), but the Claimant did not attach all letters showing the affected employees and their positions. Without complete material the Court could not interrogate the process or sanction the Respondent, though the Respondent was reminded to be cognisant of section 40.

p. 3
03

Entitlement to interlocutory injunction in redundancy dispute

Holding

Injunction declined; remedy lies in the substantive claim after full hearing

Reasoning

Relying on dicta by Nduma Nderi J. in Churchill Ongalo v Kenya Kazi Security Services Limited, the Court held that the legality of the redundancy and entitlement to an injunction preserving employment could only be determined after all relevant facts were heard. Affected employees may articulate grievances in the substantive suit.

p. 3

Legal principles established

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  • Where urgency precludes referral to conciliation, a Union may properly come to Court for urgent relief, settling the exhaustion doctrine issue
  • An injunction preserving employment pending a redundancy declaration cannot be granted without full facts; the substantive legality of the redundancy awaits full hearing

Court orders

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  1. 1.Dismissal of the Notice of Motion dated May 3, 2023
  2. 2.Costs in the cause
  3. 3.Leave for affected employees to articulate grievances and seek relief in the substantive claim
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under section 12 of the Labour Relations Act as invoked by Claimant

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, "Amalgamated Union of Kenya Metal Workers v CMC Motors Group Limited (Cause E350 of 2023) [2023] KEELRC 1420 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1420/eng@2023-05-31

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