[2016] KEELRC 1849 (KLR)
The court found that the preliminary objections raised by the respondents did not constitute pure points of law as defined in Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd. [1969] EA 696. The objections required the court to delve into factual matters, such as whether the claimant met the...
Source-derived case information.
- Citation
- [2016] KEELRC 1849 (KLR)
- Parties
- Applicant: Rift Valley Railways Workers Union; Respondent: Building and Construction Workers Union; Respondent: China Road and Bridge Corporation; Respondent: Kenya Railways Corporation; Respondent: Central Organisation of Trade Unions (K)
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 120 of 2016
- Procedural Posture
- Cause / Ruling on Preliminary Objection
- Outcome
- Preliminary objections dismissed; suit to proceed to full hearing.
- Legal Topics
- Trade Union Recognition, Jurisdiction of Employment Court, Freedom of Association, Preliminary Objection, Conciliation Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rift Valley Railways Workers Union
Applicant
Building and Construction Workers Union
Respondent
China Road and Bridge Corporation
Respondent
Kenya Railways Corporation
Respondent
Central Organisation of Trade Unions (K)
Respondent
Procedural Posture
Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the court has jurisdiction to hear the suit at this stage.
- 2 Whether the suit offends the provisions of Part VIII and IX of the Labour Relations Act, 2007.
- 3 Whether the claimant meets the statutory threshold for recognition under Section 54 of the Labour Relations Act.
Ratio Decidendi
The court found that the preliminary objections raised by the respondents did not constitute pure points of law as defined in Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd. [1969] EA 696. The objections required the court to delve into factual matters, such as whether the claimant met the statutory threshold for union recognition and whether the dispute had been conclusively resolved by conciliation. Since these issues could not be determined without examining evidence, the court held that the objections were not suitable for summary determination at the preliminary stage. Consequently, the court directed that the suit proceed to full hearing on the merits.
Court Disposition
Preliminary objections dismissed; suit to proceed to full hearing.
Orders
- The notices of preliminary objection are dismissed.
- The suit shall proceed to full hearing on the merits.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS
COURT OF KENYA AT NAIROBI
CAUSE NO. 120 OF 2016
RIFT VALLEY RAILWAYS
WORKERS UNION ………………….………….….. CLAIMANT
VERSUS
BUILDING AND CONSTRUCTION
WORKERS UNION …………....………….…….. 1ST RESPONDENT
CHINA ROAD AND
BRIDGE CORPORATION …….........……….……. 2ND RESPONDENT
AND
KENYA RAILWAYSCORPORATION …...… 1ST INTERESTED PARTY
CENTRAL ORGANISATION
OF TRADE UNIONS (K) …….…...............….... 2ND INTERESTED PARTY
RULING
1. The 1st respondent raised a preliminary objection to this suit dated 5th February 2016 and filed on the even date to wit;
2. That the honourable court has no jurisdiction to determine this cause as it is prematurely before it.
3. That the cause offends the provision of part VIII and IX of the Labour Relations Act of 2007.
4. At the same time the 2nd respondent filed a notice of preliminary objection on the same date, the 5th February 2016 set out in paragraphs 1 to 5 of the notice;
1. That the claim seeks to infringe upon the constitutional rights of the 2nd respondent’s employees to join trade union of their choice and participate in its activities by dint of Article 41 (2) (c) of the constitution.
2. The claimant’s suit if entertained by this honourable court shall be an attempt at infringing the 2nd respondent’s employees’ freedom of association as envisaged under Article 36 (1) and (2) of the constitution.
3. The subject matter of the claim was resolved by conciliation as prescribed by the Labour Relations Act under sections 67 and 68 and a binding decision reached on 8th January 2015. The decision was in writing and was addressed to the claimant and the 1st respondent.
4. The claimant does not meet the simple majority requirement under Section 54 (1) and (2) of the Labour Relations Act to warrant recognition by the 2nd respondent as the representative of the 2nd respondent’s employees’ interests.
5. Having failed to meet the simple majority threshold as required by the Labour Relations Act, the claimant lacks the locus standi to represent the interests of Mr. Stephen Chege on claims of his dismissal for being its member which claims are, without prejudice to the aforementioned, unsubstantiated.
5. The court having carefully considered the objections and upon consideration of the submissions by the parties has arrived at the conclusion that the points raised by the 1st and 2nd respondents against the suit are not pure points of law that may be determined without delving into the facts of the suit.
6. The court relies on the case of Mukisa Biscuit Manufacturing Co. Ltd V West End Distributors Ltd. [1969] EA 696 to find that the notices of preliminary objections are not pure points of law and do not deserve consideration at the preliminary stage.
7. The suit shall proceed to full hearing on the merits.
Dated and delivered at Nairobi this 5th day of August, 2016
MATHEWS NDERI NDUMA
PRINCIPAL JUDGE