[2023] KEELRC 1873 (KLR)

Kenya Engineering Workers Union v Vaghjiyani Enterprises Limited (Cause E655 of 2020) [2023] KEELRC 1873 (KLR) (5 July 2023) (Ruling)

Neutral citation: [2023] KEELRC 1873 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E655 of 2020

Nzioki wa Makau, J

July 5, 2023

Between

Kenya Engineering Workers Union

Claimant

and

Vaghjiyani Enterprises Limited

Respondent

Ruling

1. The claimant seeks vide its notice of motion for orders to restrain the respondent from victimising it member (sic) and that the court be pleased to order the respondent to effect deduction of union dues per section 48(1) of theLabour Relation Act, 2007. In their nature, these prayers are interlocutory injunctive prayers. The claimant has a test to meet being the three tier test inGiella v Cassman Brown Co. Ltd [1973] EA 358a.Firstly, an applicant must show a prima facie case with a probability of success.b.Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages.c.Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.

2. The respondent in reply filed a replying affidavit sworn by Mr Noel Christian Owino who asserts that the claimant does not have the numbers as out of 16 members who had purportedly been recruited, 14 of them have since left the employ of the respondent. He further asserts that the employees enlisted in the check off forms are not engineers and others were members of the union – KBTCFU. It is therefore the respondent’s position that the application is not for grant.

3. Only the respondent had filed submissions at the time of penning this ruling. It was submitted that from the respondent’s response it is evident that this application and the entire claim has been overtaken by events as 14 of the members enlisted therein have left the employment of the respondent and the remaining 2 belong to another union. The respondent submitted that from the material placed on record, the plaintiff has not demonstrated any victimization of its purported members by the respondent to warrant issuance of the interim orders sought. It submits that it is trite law that he who alleges must prove and proving a fact must be by tangible evidence. No evidence has been brought forward on victimization and worse still, not even a sentence in the entire application and memorandum of claim that alludes to victimization of the claimant’s purported members. Therefore, it is submitted, without any evidence of victimization, the injunctive orders sought herein cannot be granted and the prayer is just an abuse of the court process. As to whether the claimant has made out its case to warrant deductions being effected on its purported members, the respondent submitted that the claimant had not.

4. The respondent submits that the same prayer has been sought in the memorandum of claim and to grant it at this stage will determining the claim conclusively at the interlocutory stage hence rendering the entire suit nugatory. It was submitted that there was inordinate delay in prosecuting the application as a result of which 14 of the employees enlisted as the claimant’s members have left the employment of the respondent and the remaining 2 belong to another union- KBTCU and that even before the said employees left the employment of the respondent, some of those employees belonged to the said KBTCU union. The Respondent submits that there is not even a single engineer amongst the employees enlisted by the claimant as its members and hence it is not the right union and that this is an issue that can be determined upon full hearing of the claim.

5. The respondent submits that having not met the first two requirements for grant of an interlocutory injunction, the court need not delve into the issue of the balance of convenience. On the issue, it submits that the balance of convenience tilts in favour of the respondent for reasons that the employees are no longer in active employment of the respondent and hence no salary from which the deductions will be made and the remaining 2 who are still the employees of the respondent, they belong to another union. In any event, any unlikely loss can be compensated by way of damages. On the issue of costs, it was submitted that costs should follow the event and that this honourable court should award costs of the application to the respondent.

6. In determining the motion, it is important to note that the assertions by the claimant in respect to the claim before the court have to be subjected to scrutiny as the respondent asserts the claimant does not have the numbers. There is also the insinuation that the members of the claimant union are not covered by the union as they belong to another union, namely KBTCFU.

7. Where the court has to have an in-depth merit evaluation of evidence, the orders sought on the interlocutory application are not fit for grant. This is one of those cases where the best course is to hear the matter on its merits and have a determination that is wholesome. In the premises as the claimant has not established it is entitled to the relief sought, the same is disallowed with no order as to costs. The claimant and respondent are to comply with pre-trial directions and take a hearing date in the matter as is the norm.It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 5THDAY OF JULY 2023NZIOKI WA MAKAUJUDGE