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ELRCOtherNot stated in the judgment· [2023] KEELRC 1973 (KLR)

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)

Employment and Labour Relations Court of Kenya
4 August 2023
918 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi (Anna Ngibuini Mwaure J) determined two preliminary objections raised against a petition and notice of motion dated March 13, 2023, in which five petitioners challenged a gazette notice (No. 7 of 2021) published by the Cabinet Secretary for Labour. The respondent objected that the suit was filed out of time contrary to section 30 of the Labour Relations Act, 2007, that the petitioners had not pleaded with particularity the fundamental rights allegedly violated, and that they had failed to exhaust internal union dispute resolution mechanisms. The 1st and 2nd interested parties filed a similar objection on limitation and defective pleading, contending the suit was fatally defective. The petitioners responded that they were challenging a gazette notice published by the Ministry of Labour, not any decision of the Registrar of Trade Unions. The court restated the classic test for preliminary objections - that they must raise pure points of law, be argued on the assumption that all facts pleaded are correct, and be capable of disposing of the suit without ascertaining facts or exercising discretion. Applying that test, the court found the objections were not pure points of law and required proof; in particular, since the gazette notice was published by the Ministry of Labour rather than the Registrar, the limitation objection under section 30 was not merited. Both preliminary objections were dismissed with costs to the petitioners, and directions were given for pleadings to close and the suit to be fixed for hearing within 60 days. The substantive petition remains pending for full hearing.

Key legal issues

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01

Whether the objections on limitation, pleadings and exhaustion of internal remedies qualified as valid preliminary objections

Holding

The objections were not pure points of law; they required ascertainment of facts and persuasion of the court, and were accordingly dismissed.

Reasoning

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.

p. 2
02

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

Holding

The objection was not merited because the gazette notice was not published by the Registrar of Trade Unions but by the Ministry of Labour.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The two preliminary objections by the respondent and the interested parties are dismissed
  2. 2.Costs to be met by the respondents and interested parties
  3. 3.Parties to ensure pleadings are filed and closed
  4. 4.Suit to be fixed for hearing 60 days from the date of the ruling
  5. 5.A signed copy of the order to be availed to each party upon payment of Court fees

Authorities

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Legislation

  • Labour Relations Actsection 30
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (1)

  • Joseph Ngara Kuria vs Stephen Thuo Gitau
    Misc. 8 of 2021
Jurisdiction invoked
Original constitutional petition jurisdiction; suit challenging a gazette notice published by the Cabinet Secretary for Labour

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, "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.