Thuo & 4 others v Kenya Union of Commercial Food and Allied Workers; National Hospital Insurance Fund & another (Interested Parties) (Employment and Labour Relations Cause E049 of 2023) [2023] KEELRC 1973 (KLR)
The bottom line
#Kenya's Employment Court dismissed attempts to throw out a union-related petition, confirming preliminary objections must be pure points of law, not fact-finding exercises.
What this practically means
#Executive summary
#Key legal issues
#Whether the objections on limitation, pleadings and exhaustion of internal remedies qualified as valid preliminary objections
The objections were not pure points of law; they required ascertainment of facts and persuasion of the court, and were accordingly dismissed.
The court reiterated that a preliminary objection must rest on a self-evident point of law capable of terminating the suit, without need for evidence or exercise of discretion. Here the gazette notice challenged was published by the Ministry of Labour, not the Registrar of Trade Unions, and the issues of time bar, pleading particularity and exhaustion required proof, so the objections failed.
Whether the objection founded on section 30 of the Labour Relations Act, 2007 could succeed where the challenged decision was a gazette notice by the Cabinet Secretary for Labour
The objection was not merited because the gazette notice was not published by the Registrar of Trade Unions but by the Ministry of Labour.
The petitioners explained they were challenging a gazette notice published by the Cabinet Secretary for Labour and had not alluded to any decision by the Registrar of Trade Unions. The court accepted that the objection premised on the Registrar's decision and the 30-day time bar under section 30 did not fit the matter before it.
Legal principles established
#- A preliminary objection must be a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised.
Court orders
#- 1.The two preliminary objections by the respondent and the interested parties are dismissed
- 2.Costs to be met by the respondents and interested parties
- 3.Parties to ensure pleadings are filed and closed
- 4.Suit to be fixed for hearing 60 days from the date of the ruling
- 5.A signed copy of the order to be availed to each party upon payment of Court fees
- Jurisdiction invoked
- Original constitutional petition jurisdiction; suit challenging a gazette notice published by the Cabinet Secretary for Labour
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thuo & 4 others v Kenya Union of Commercial Food and Allied Workers; National Hospital Insurance Fund & another (Interested Parties) (Employment and Labour Relations Cause E049 of 2023) [2023] KEELRC 1973 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1973/eng@2023-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.