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ELRCDismissedNot stated in the judgment as provided· [2023] KEELRC 3240 (KLR)

Kenya Concrete, Structural, Ceramic Tiles, Woodplys & Interior Design Workers Union v Bomi Engineering and Construction Company (Cause E779 of 2023) [2023] KEELRC 3240 (KLR)

Employment and Labour Relations Court
7 December 2023
2,855 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court refused to immediately reinstate 466 locked-out workers, saying reinstatement is a final remedy only granted in rare exceptional cases after a full hearing.

What this practically means

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Executive summary

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The applicant union moved the Employment and Labour Relations Court by notice of motion dated September 26, 2023 seeking interim orders directing the respondent to reinstate 466 workers allegedly locked out on August 4, 2023, to protect them from victimization or termination, and that the application and main suit proceed by way of documentation under rule 21 of the ELRC (Procedure) Rules, 2016. The union contended the lockout following a trade dispute and a conciliator's recommendations amounted to unfair labour practice under Article 41 of the Constitution. The respondent opposed, asserting the workers engaged in an unprotected strike without the requisite seven days' notice, that their termination followed lawful procedure, and that replacement labour had been engaged for the KAIST construction project, making reinstatement unworkable. The court framed one principal issue: whether the application met the threshold for the orders sought. Applying Giella v Cassman Brown and Mrao Ltd, the court held the applicant failed to establish a prima facie case with probability of success, irreparable injury, or balance of convenience. It emphasized that reinstatement is a final remedy grantable at interlocutory stage only in exceptional circumstances such as automatically unfair terminations, none of which were shown. On documentation, the court held rule 21 requires either all-party agreement or the court's own motion, and the respondent objected; the prayer was also overtaken by events. The notice of motion was dismissed, with costs abiding the outcome of the main suit.

Key legal issues

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01

Whether the applicant met the Giella v Cassman Brown threshold for temporary injunctive/reinstatement orders

Holding

The application failed all three limbs: no prima facie case, no demonstration of irreparable injury, and no balance of convenience in the applicant's favour

Reasoning

The court applied Giella v Cassman Brown and Mrao Ltd on prima facie case. It held reinstatement is a final remedy not normally granted interlocutorily absent exceptional circumstances, and the applicant furnished no evidence of grave injustice or irreparable loss incapable of monetary quantification.

p. 7
02

Whether the application and main suit could proceed by way of documentation under rule 21

Holding

Rule 21 requires agreement of all parties or the court's own motion; the respondent objected, and the prayer was overtaken by events, so the matter proceeds to hearing

Reasoning

The court found rule 21 permits documentation only suo motu or by all-party agreement. The respondent preferred viva voce evidence, and the prayer had been overtaken by events since the application was already disposed of by the ruling.

p. 7

Legal principles established

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  • Interim reinstatement is an exceptional final remedy, available only where special circumstances such as automatically unfair grounds are shown
  • A suit may proceed by way of documentation under rule 21 only by agreement of all parties or on the court's own motion

Court orders

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  1. 1.The applicant's notice of motion dated September 26, 2023 is dismissed
  2. 2.Costs shall abide the outcome of the main suit

Authorities

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Legislation

  • Employment and Labour Relations Court Actsections 20(1) & (4)
  • Employment and Labour Relations Court (Procedure) Rules, 2016rules 17(1)(2)(3) and 21
  • Constitution of Kenya, 2010Article 41(1) & (2)(a)
  • Labour Relations Actnot specified (2007)

Cases cited (7)

  • Giella v Cassman Brown & Co Ltd
    (1973) EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Marple Brooks Projects Company Limited & another v I&M Bank Limited
    (2019) eKLR
  • Suleiman v Amboseli Resort Ltd
    (2004) 589
  • Films Rover International v Cannon Films Sales Ltd
    (1986) ALL ER 772
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    (2003) KLR
  • Paul Nyandewo Onyangoh v Parliamentary Service Commission & others
    Cause No. 2292 of 2016
Jurisdiction invoked
Sections 20(1) & (4) of the Employment and Labour Relations Court Act; rule 17(1)(2)(3) and 21 of the Employment and Labour Relations Court (Procedure) Rules, 2016; Article 41(1) & (2)(a) of the Constitution of Kenya, 2010

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 Concrete, Structural, Ceramic Tiles, Woodplys & Interior Design Workers Union v Bomi Engineering and Construction Company (Cause E779 of 2023) [2023] KEELRC 3240 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3240/eng@2023-12-07

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