[2022] KEELRC 3965 (KLR)
The court found that the parties had taken divergent positions on material facts, which could only be resolved through a full hearing rather than at the interlocutory stage. The claimant's application, in effect, sought to prosecute the main claim prematurely by requesting substantive orders before the determination...
Source-derived case information.
- Citation
- [2022] KEELRC 3965 (KLR)
- Parties
- Applicant: Wood Plys & Interior Design Workers Union; Respondent: Corporation Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E247 of 2022
- Procedural Posture
- Interlocutory Application / Ruling on Interlocutory Motion
- Outcome
- application dismissed
- Judges
- L Ndolo
- Legal Topics
- Trade Union Recognition, Unfair Dismissal, Redundancy Procedure, Terminal Dues, Victimisation, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wood Plys & Interior Design Workers Union
Applicant
Corporation Ltd
Respondent
Procedural Posture
Interlocutory Application / Ruling on Interlocutory Motion
Legal Issues
- 1 Whether the respondent wrongfully and unfairly dismissed union members on account of redundancy without paying terminal dues.
- 2 Whether the respondent's actions amounted to victimisation of union members contrary to the law.
- 3 Whether the claimant is entitled to interlocutory orders for computation and payment of dues and restraining orders against victimisation.
Ratio Decidendi
The court found that the parties had taken divergent positions on material facts, which could only be resolved through a full hearing rather than at the interlocutory stage. The claimant's application, in effect, sought to prosecute the main claim prematurely by requesting substantive orders before the determination of the merits of the case. The court held that it was inappropriate to grant the interlocutory orders sought, as doing so would pre-empt the main hearing and determination of the disputed facts. Consequently, the claimant's motion was declined, with costs in the cause.
Court Disposition
application dismissed
Orders
- The claimant's motion dated April 21, 2022 is declined with costs in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
Wood Plys & Interior Design Workers Union v Corporation Ltd (Cause E247 of 2022) [2022] KEELRC 3965 (KLR) (22 September 2022) (Ruling)
Neutral citation: [2022] KEELRC 3965 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E247 of 2022
L Ndolo, J
September 22, 2022
Between
Wood Plys & Interior Design Workers Union
Claimant
and
Corporation Ltd
Respondent
Ruling
1. By its notice of motion dated April 21, 2022, the claimant seeks an order directing the respondent to compute, file and serve upon the claimant a payment schedule payable to all the aggrieved members of the claimant.
2. The claimant further seeks an order restraining the respondent from any act of victimisation, including termination of existing appointments and dismissal of the claimant’s members on account of this suit.
3. The motion is supported by an affidavit sworn by the claimant’s general secretary, Dishon Angoya and is based on the following grounds:a.The respondent has wrongfully and unfairly dismissed Ekure Midong, Charles Kirui and 5 other employees who are members of the claimant, on account of redundancy and has failed, ignored and/or refused to pay final dues as per the law;b.The respondent’s action is largely aimed at frustrating the efforts of the claimant in achieving a recognition agreement;c.The right to unionise is secured under article 41 of the Constitution;d.The respondent has refused, declined and ignored the findings and recommendations of the appointed conciliator issued on March 28, 2022;e.The respondent has ignored, neglected and refused to pay the aggrieved members of the claimant their terminal dues as required under the law.
4. The respondent’s response to the claimant’s motion is contained in a replying affidavit sworn by the respondent’s Legal Officer, Stanley Amule on May 16, 2022.
5. Amule accuses the claimant of misrepresenting facts before the court. He gives details of the circumstances under which the named grievants had left the respondent’s employment and terms the termination as lawful and fair.
6. Amule depones that the respondent has not met the legal threshold set under section 54 of the Labour Relations Act on recognition of a trade union by an employer. He states that the respondent has been remitting union dues to the claimant, on account of those employees who had voluntarily joined the union.
7. Amule concludes by stating that there is a similar matter being Cause No E056 of 2022, pending before Rika J.
8. In a rejoinder, the claimant’s general secretary, Dishon Angoya states that Cause No E056 of 2022 is on non-remittance of union dues while the present cause has to do with reinstatement of union officials.
9. In their pleadings in this application, the parties have taken divergent positions on many issues of fact, which can only be determined pursuant to a full hearing.
10. Moreover, by its motion, the claimant in effect seeks to prosecute the main claim at the interlocutory stage.
11. For the foregoing reasons, the claimant’s motion dated April 21, 2022 is declined with costs in the cause.
Orders accordingly.DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF SEPTEMBER 2022LINNET NDOLOJUDGEAppearance:Mr. Angoya (Union Representative) for the ClaimantMr. Amule for the Respondent