[2016] KEELRC 212 (KLR)
The Court found that there was no evidence presented to suggest that the Respondent's outsourcing process would result in redundancies or that the Respondent would fail to comply with statutory redundancy provisions or the relevant contractual agreements. Consequently, the Claimant failed to establish a prima facie...
Source-derived case information.
- Citation
- [2016] KEELRC 212 (KLR)
- Parties
- Applicant: Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers; Respondent: Moi University
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Cause 314 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Judges
- MSA Makhandia
- Legal Topics
- Outsourcing, Redundancy, Interim Injunctions, Unfair Labour Practices
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers
Applicant
Moi University
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the outsourcing process by the Respondent would result in job losses for the Claimant's members.
- 2 Whether the outsourcing constitutes an unfair labour practice.
- 3 Whether the Claimant is entitled to interim orders staying the outsourcing process.
Ratio Decidendi
The Court found that there was no evidence presented to suggest that the Respondent's outsourcing process would result in redundancies or that the Respondent would fail to comply with statutory redundancy provisions or the relevant contractual agreements. Consequently, the Claimant failed to establish a prima facie case or demonstrate irreparable harm as required for the grant of interim injunctive relief. The application for interim orders was therefore not merited and was dismissed.
Court Disposition
application dismissed
Orders
- The motion is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 314 OF 2016
KENYA UNION OF DOMESTIC, HOTELS,
EDUCATIONAL INSTITUTIONS, HOSPITALS
& ALLIED WORKERS CLAIMANT
v
MOI UNIVERSITY RESPONDENT
RULING
1. The Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals & Allied Workers (KUDHEIHA) moved Court through a motion under urgency on 2 September 2016 against Moi University (Respondent) seeking
1. …
2. THAT this honourable Court be pleased to issue interim orders staying the outsourcing (Tendering process) until this application is dispensed with.
3. THAT the Respondent pays the costs of this application.
2. The Respondent’s Legal Officer swore and caused to be filed a replying affidavit opposing the motion on 20 September 2016.
3. However, when the motion was urged on 15 November 2016, the Respondent was not present or represented despite the date being scheduled in the presence of its counsel.
4. KUDHEIHA’s case is that the outsourcing by the Respondent would lead to job losses by its members. It is further contended that outsourcing is an unfair labour practice.
5. During oral submissions, Mr. Siembo, Industrial Relations Officer with KUDHEIHA urged that the application presented unique circumstances warranting the grant of the order sought.
6. The legal principles appertaining to determination of an application such as the one presented to Court were set out in the case of Giella v Cassman Brown & Co. Ltd (1973) EA 358.
7. At this juncture, there is no evidence presented to Court to suggest that the outsourcing by the Respondent would lead to any redundancies or that the Respondent would not comply with the statutory redundancy provisions as outlined in section 40 of the Employment Act, 2007, or the contractual agreements between the parties (recognition agreement and collective bargaining agreement(s).
8. In the circumstances, the Court is of the view that the orders sought are not merited.
9. The motion is dismissed with no order as to costs.
Delivered, dated and signed in Nakuru on this 9th day of December 2016.
Radido Stephen
Judge
Appearances
KUDHEIHA Mr. Siembo, Industrial Relations Officer
For Respondent Federation of Kenya Employers
Court Assistants Nixon/Daisy