[2021] KEELRC 976 (KLR)
The court found that the applicant failed to establish the prerequisites for the grant of an interim injunction as set out in Giella v Cassman Brown. The redundancy process had already been completed, rendering the application for interim orders moot. The applicant did not demonstrate a prima facie case with a...
Source-derived case information.
- Citation
- [2021] KEELRC 976 (KLR)
- Parties
- Applicant: Kenya National Private Security Workers Union; Respondent: G4S Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E434 of 2021
- Procedural Posture
- Stay Application / Ruling on Interlocutory Application for Interim Injunction
- Outcome
- application dismissed
- Judges
- MN Nduma
- Legal Topics
- Redundancy Procedure, Unlawful Termination, Interim Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya National Private Security Workers Union
Applicant
G4S Kenya Limited
Respondent
Procedural Posture
Stay Application / Ruling on Interlocutory Application for Interim Injunction
Legal Issues
- 1 Whether the respondent followed the mandatory redundancy procedures under Section 40(1) of the Employment Act, 2007.
- 2 Whether the applicant is entitled to interim injunctive relief restraining the respondent from effecting redundancy terminations.
- 3 Whether the application for interim orders is moot given the redundancy process has been completed.
Ratio Decidendi
The court found that the applicant failed to establish the prerequisites for the grant of an interim injunction as set out in Giella v Cassman Brown. The redundancy process had already been completed, rendering the application for interim orders moot. The applicant did not demonstrate a prima facie case with a probability of success or that irreparable harm would be suffered if the orders were not granted, as substantive reliefs could still be pursued in the main suit. Granting the interim orders would serve no useful purpose since the redundancies had already taken effect. Accordingly, the application was dismissed with costs in the cause.
Court Disposition
application dismissed
Orders
- The application dated 25th May, 2021 is dismissed with costs in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. E434 OF 2021
KENYA NATIONAL PRIVATE SECURITY WORKERS UNION.....CLAIMANT
VERSUS
G4S KENYA LIMITED.......................................................................RESPONDENT
RULING
1. The notice of motion dated 25th May, 2021 by the claimant/applicant seeks an order in the following terms:-
1. Spent
2. Spent
3. That pending the hearing and determination of this cause this Honourable Court do issue stay order restraining the Respondent from executing its intention of unlawful termination.
2. The application is premised on grounds set out on the face of the Notice of Motion the nub of which is that on or about 10th May, 2021, the respondent served security guards in its employment with letters dubbed “Notice of Redundancy”advising that their positions will become redundant and their employment shall stand terminated with effect from 10th June, 2021. That the respondent has failed to follow the mandatory provisions of Section 40(1) of the Employment Act, 2007 in that there was no consultation on the selection criteria and the reasons for the decision. This is buttressed in the supporting affidavit of one Isaac G.M. Andabwa, the National General Secretary of the claimant to which the notices of redundancy are attached and a response to the Human Resource Director of the Respondent by the claimant union.
5. The application is opposed vide grounds of opposition dated 8th June, 2021 and replying affidavit of Eliza Sitimah sworn to on the even date and a further affidavit of the said Elijah Sitimah sworn on 11th June, 2021.
6. The respondent states that it issued redundancy notices to 391 employees on various dates between 10th May, 2021 and 1st June, 2021. That between that time and 30th June, 2021, the respondent has recalled 192 redundancy notices and the rest numbering 199, have served their statutory notices and have left employment.
7. The redundancy process has been completed and the orders sought are now moot and should they be granted would be in vain.
8. That the redundancies were based on genuine operational grounds and procedures under Section 40 of the Employment Act were followed.
9. The Court has considered the rival arguments in the application; replying affidavits and written submissions and is satisfied that the applicant has failed to establish the perquisites of grant of interim injunction set out in the case of Giella –vs- Cassman Brown Co. Ltd. – 1973 E.A. 358 in that the claimant has not established a prima facie case with a probability of success; that the claimant is likely to suffer irreparable harm if the interim injunction is not granted since appropriate reliefs are also sought in the statement of claim for grant upon hearing of the suit on the merit and that the horse has already bolted and the interim orders if granted at this time will serve no useful purpose.
10. Accordingly, the application lacks merit and is dismissed with costs in the cause.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 23RD DAY OF SEPTEMBER, 2021
MATHEWS N. NDUMA
JUDGE
Appearances
M/s Wanyama for Mr. Wati for Claimant
M/s Sogok for Makori for Respondent
Ekale – Court Assistant