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ELRCDismissedNotice of Motion dated 19th August, 2024 (Employment and Labour Relations Court, Kisumu)· [2025] KEELRC 96 (KLR)

Sukari Industries Ltd & 3 others v Ongoro & 3 others (Cause E067 of 2024) [2025] KEELRC 96 (KLR)

Employment and Labour Relations Court
27 January 2025
3,716 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan employer lost its bid to stop an alleged strike because it couldn't provide solid evidence proving who did what.

What this practically means

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Executive summary

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The claimant, Sukari Industries Ltd, moved the Employment and Labour Relations Court at Kisumu by Notice of Motion dated 19th August 2024 under Sections 76, 77, 78 and 80 of the Labour Relations Act, seeking interlocutory injunctions restraining the four respondent employees from participating in, instigating or inciting the strike allegedly commenced on 19th August 2024 and from disrupting its operations, plus an order directing the OCS Ndiwa Police Station to enforce compliance. The claimant alleged the strike, led by the respondents, shut down its sugar factory, destroyed property and threatened managers' safety, without prior strike notice or dialogue. The respondents denied leading or participating in any strike, deposing that a go-slow lasting about three hours occurred, that participants were leaderless, and that longstanding grievances - including against the General Manager and an unimplemented February 2024 return-to-work formula - underlay the disruption. The court found the applicant's depositions generalized and lacking evidentiary support, with no proof of loss, police or labour office reports, or of each respondent's role, while the respondents' account was uncontroverted and more credible. Applying the Giella v Cassman Brown principles and the burden and standard of proof under the Evidence Act, the court held the applicant failed to prove its case on a balance of probabilities and dismissed the Notice of Motion with costs.

Key legal issues

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01

Whether the applicant established a prima facie case warranting an interlocutory injunction over the alleged illegal strike of 19th August 2024

Holding

The application failed for want of proof; the applicant's depositions were generalized, lacked particularity and were not evidentiary demonstrable, while the respondents' account was more detailed and credible.

Reasoning

The applicant's supporting affidavit did not state the deponent was present or briefed, lacked essential details on the alleged strike, offered no evidence of loss or police/labour office reports, and did not demonstrate each respondent's role. The respondents' evidence of a brief go-slow ending by 11:00am was uncontroverted. Prior grievances under a February 2024 return-to-work formula lent context. The burden of proof under Sections 107, 108 and 109 of the Evidence Act was not discharged.

p. 5
02

Standard and burden of proof in civil applications

Holding

The burden lay on the applicant to prove the strike and the respondents' instigation of it on a balance of probabilities; formal proof is required even where a claim is uncontroverted.

Reasoning

The court applied Sections 107(1), 108 and 109 of the Evidence Act and authority including the Supreme Court's decision in the Raila Odinga case, holding that the standard of proof in civil cases is on a balance of probabilities and that a court must examine the evidence and dismiss a claim that falls short of that standard.

p. 7

Legal principles established

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  • He who alleges must prove; the burden of proof lies on the party asserting the facts, and allegations must be established on a balance of probabilities even where uncontroverted.
  • The principles for the grant of an interlocutory injunction are a prima facie case with probability of success, irreparable injury, and balance of convenience.

Court orders

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  1. 1.The applicants' Notice of Motion dated 19th August, 2024 is dismissed with costs

Authorities

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Legislation

  • Labour Relations ActSections 76, 77, 78, 80
  • Employment and Labour Relations Court ActSection 12(3)(1)
  • Evidence ActSections 107(1), 108, 109
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (11)

  • Thomas Mumo Maingey & Another V Sarah Nyiva Hillman & Others
    [2018] eKLR
  • Charles House Investments V Simon K. Sang & Others
  • Giella V Cassman Brown and Co. Ltd
    [1973] EA 358
  • Raila Odinga & Another V Independent Electoral and Boundaries Commission & 2 Others; Auko & Another (Interested Parties); Attorney General & Another (Amicus Curie)
    [2017] KESC 42 (KLR)
  • David Bagine V Martin Bundi
    [19917] eKLR
  • Anne Wambui Ndiritu V Joseph Kiprono Ropkoi and Another
    [2005] IEA 334
  • Evans Nyakwana V Cleophas Bwana Ongaro
    [2015] eKLR
  • Nandi Tea Estates Ltd V Eunice Jackson Were
    [2006] eKLR
  • Mary Wambui V Kenya Bus Services Ltd
    [1997] eKLR
  • Daniel Toroitich Arap Moi V Mwangi Stephen Muriithi & Another
    [2014] eKLR
  • Re H. & Others
    [1969]
Jurisdiction invoked
Sections 12(3)(1) of the Employment and Labour Relations Court Act and Section 77 of the Labour Relations Act; Sections 76, 77, 78 and 80 of the Labour Relations Act

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, "Sukari Industries Ltd & 3 others v Ongoro & 3 others (Cause E067 of 2024) [2025] KEELRC 96 (KLR)", Case Analysis (2025). Notice of Motion dated 19th August, 2024 (Employment and Labour Relations Court, Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/96/eng@2025-01-27

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