[2017] KEELRC 1781 (KLR)
The court found that the orders sought by the Claimant for deposit of Kshs. 1,792,394 or the Director's passport were unnecessary because the parties had already agreed that the affected employees would continue working pending the hearing and determination of the claim. There was no demonstrated risk that the...
Source-derived case information.
- Citation
- [2017] KEELRC 1781 (KLR)
- Parties
- Applicant: Almagamated Union of Kenya Metal Workers; Respondent: M/S Automarine Services
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 422 of 2016
- Procedural Posture
- Employment Cause / Interlocutory Ruling on Interim Applications
- Outcome
- Interlocutory applications for deposit and injunction declined; leave to amend claim granted; costs in the cause.
- Legal Topics
- Collective Bargaining Agreements, Redundancy Procedure, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Almagamated Union of Kenya Metal Workers
Applicant
M/S Automarine Services
Respondent
Procedural Posture
Employment Cause / Interlocutory Ruling on Interim Applications
Legal Issues
- 1 Whether the Respondent should be compelled to deposit Kshs. 1,792,394 or the Director's passport in court as security pending determination of the claim.
- 2 Whether an injunction should issue barring the Respondent from changing its business name.
- 3 Whether the Claimant should be allowed to amend its Statement of Claim.
Ratio Decidendi
The court found that the orders sought by the Claimant for deposit of Kshs. 1,792,394 or the Director's passport were unnecessary because the parties had already agreed that the affected employees would continue working pending the hearing and determination of the claim. There was no demonstrated risk that the Respondent would frustrate the process or evade liability. Similarly, the request to bar the Respondent from changing its business name was declined, as such a change is within the business owner's prerogative and does not affect the employees' contracts so long as the employment relationship continues. The court allowed the Claimant to amend its Statement of Claim, noting that the...
Court Disposition
Interlocutory applications for deposit and injunction declined; leave to amend claim granted; costs in the cause.
Orders
- The prayer for deposit of Kshs. 1,792,394 or Respondent's Director's passport is declined.
- The prayer for injunction barring the Respondent from changing its name is declined.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT MOMBASA
CAUSE NUMBER 422 OF 2016
BETWEEN
ALMAGAMATED UNION OF KENYA
METAL WORKERS……….…………………………….CLAIMANT
VERSUS
M/S AUTOMARINE SERVICES…….…..……………RESPONDENT
RULING
1. The Claimant Union filed a Statement of Claim dated 27th May 2016, seeking orders: that the Respondent is ordered to implement CBA forthwith and pay Employees all accrued benefits; arrears of salary are paid on compound interest; the Court imposes a fine on the Respondent under Section 82 of the Labour Relations Act; the Respondent to meet the costs of the Claim; and any other suitable relief.
2. In an Application dated 8th July 2016, the Claimant seeks a temporary injunction barring the Respondent from terminating Claimant’s members’ contracts of employment on account of redundancy; the Respondent deposits in Court Claimant’s Members’ dues, calculated at Kshs. 1,792,394; or the Respondent’s Director is ordered to deposit his passport in Court; the Claimant is allowed to amend its Statement of Claim; the Respondent is barred from changing its name; and the Claimant is granted any other suitable provisional measure.
3. Parties agreed in Court on 11th July 2016, to allow the prayer barring the Respondent from terminating the contracts of employment of its Employees, pending hearing and determination of the Claim, or pending settlement at their own level.
4. On 10th October 2016, they agreed further to have the remainder of the Application considered and determined on the basis of their Submissions. They confirmed the filing of their submissions at the last mention, on 23rd November 2016.
The Court Finds and Orders:-
a) There is no need to order the Respondent to deposit Kshs. 1,792,394 in Court, or order Respondent’s Director to deposit his passport with the Court. The Parties have, quite sensibly, agreed to have the affected Employees to continue working pending hearing and determination of the Claim.
b) There is no need to order the Respondent is barred from changing its name. Change of business name is entirely a prerogative of the business owner. So long as it does not interfere with the Employees’ contracts, it is a prerogative the Court should not stifle. The Parties have agreed Employees continue to work. It should not concern the Claimant, which business name, the Respondent operates under.
c) Parties have the liberty to amend their Pleadings, so long as amendment is done without delay, and without prejudice to their Counterparts. As the Claim herein is still in its infancy, relatively so, there is no reason why the Claimant should not be allowed to amend. The prayer for amendment is allowed.
d) Parties shall Move the Court for other orders.
e) Costs in the Cause.
IN SUM, IT IS ORDERED:-
i. The prayer for deposit of Kshs. 1,792,394, or that Respondent’s Director deposits his passport, with the Court is declined.
ii. The prayer for injunction barring the Respondent from changing its name is declined.
iii. The Claimant shall file and serve amended Statement of Claim within 14 days of this Ruling.
iv. Parties shall move the Court for further orders.
v. Costs in the Cause.
Dated and delivered at Mombasa this 17th day of February, 2017.
James Rika
Judge