[2016] KEELRC 1395 (KLR)
The court found that both parties had raised substantial and contested issues, including allegations of misrepresentation and forgeries, which could not be resolved on affidavit evidence alone. The court held that the threshold for granting interlocutory injunctive relief—establishing a prima facie case—had not been...
Source-derived case information.
- Citation
- [2016] KEELRC 1395 (KLR)
- Parties
- Applicant: Kenya Union of Hair and Beauty Salon Workers; Respondent: Sana Industries Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2073 of 2015
- Procedural Posture
- Interlocutory Application / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed
- Judges
- L Ndolo
- Legal Topics
- Trade Union Rights, Collective Bargaining Agreements, Unfair Labour Practices, Injunctive Relief, Disciplinary Procedures
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Hair and Beauty Salon Workers
Applicant
Sana Industries Limited
Respondent
Procedural Posture
Interlocutory Application / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the Claimant has established a prima facie case for the grant of interlocutory injunctive orders restraining the Respondent from suspending union officials and members.
- 2 Whether the Respondent's actions amount to victimisation on account of union activities and breach of the Recognition Agreement and Collective Bargaining Agreement.
- 3 Whether the suspended union members should be reinstated at the interlocutory stage.
Ratio Decidendi
The court found that both parties had raised substantial and contested issues, including allegations of misrepresentation and forgeries, which could not be resolved on affidavit evidence alone. The court held that the threshold for granting interlocutory injunctive relief—establishing a prima facie case—had not been met by the Claimant. The matter required a full hearing with oral evidence to resolve the factual disputes. Consequently, the application for interlocutory orders was dismissed, and the main claim was directed to be set down for hearing on a priority basis.
Court Disposition
application dismissed
Orders
- The Claimant's application dated 20th November 2015 is dismissed.
- Costs to be 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 2073 OF 2015
KENYA UNION OF HAIR AND BEAUTY SALON WORKERS............CLAIMANT
VS
SANA INDUSTRIES LIMITED.........................................................RESPONDENT
RULING
1. This ruling proceeds from the Claimant's application dated 20th November 2015 and filed in Court on even date. The application, which is supported by the affidavit and further affidavit of the Claimant's General Secretary, Cecily Mwangi sworn on 20th November 2015 and 1st March 2016 respectively, seeks orders to restrain the Respondent from dissipating the union membership by indefinitely suspending elected officials, shop stewards and members.
2. The Claimant also seeks reinstatement of suspended union members and a permanent injunction barring the Respondent from taking any action that amounts to victimisation on account of union activities and membership.
3. The application is based on the following grounds:
That the parties have a valid Recognition Agreement signed on 26th February 2013 and a Collective Bargaining Agreement (CBA) signed on 11th September 2013;
That in disregard of these agreements and the law, the Respondent, without cause suspended all the elected officials and shop stewards of the union;
That the Respondent has refused to honour the provisions of the CBA relating to disciplinary procedures, issuance of appointment letters and dispute resolution systems;
That the Respondent has failed to engage the Union in employee relations;
That the Respondent has no regard for Kenyan employment law and is perpetuating unfair labour practices.
4. The Respondent's response is contained in a replying affidavit sworn by the Respondent's Personnel Officer, Simon Mbuthia on 11th February 2016. Mbuthia depones that the Respondent has a workforce of 672 regular employees and about 3000 temporary employees. He adds that by the nature of its operations, the Respondent relies on temporary labour in its factories and has over the years engaged and disengaged with many employees.
5. Regard to the list of employees stated as having been suspended, Mbuthia depones that 25 had been reinstated as temporary employees, 12 had been lawfully dismissed, 50 had deserted duty and 24 could not be traced in the Respondent's records.
6. The issue for determination in this application is whether the Claimant has established a prima facie case for granting of the orders sought at the interlocutory stage. As held by the Court of Appeal in Mrao Ltd v American Bank Ltd & 2 Others [2003] eKLRa prima facie case is more than an arguable case. Both the Claimant and the Respondent have raised many issues that call for determination by the Court. There are even allegations of misrepresentation and forgeries. Having looked at the affidavits and supporting documents presented by the parties, the Court has formed the opinion that is not possible to render a determination without giving the parties an opportunity to call viva voce evidence is support of their respective cases. The Claimant's application therefore fails and is dismissed with costs being in the cause.
7. I direct that the main claim be listed for hearing on priority basis.
8. Orders accordingly.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF APRIL 2016
LINNET NDOLO
JUDGE
Appearance:
Mr. Onyony for the Claimant
Miss Oyombe for the Respondent