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Court of AppealPartially AllowedCivil Appeal No. 49 of 2018

Kenya Tea Growers Association & another v Kenya Plantation and Agricultural Workers Union [2018] KECA 32 (KLR)

Court of Appeal
20 December 2018
2,870 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that employees cannot be reinstated as a temporary measure during a case—reinstatement must wait until the full dispute is heard.

What this practically means

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Executive summary

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This Court of Appeal judgment (Githinji, Musinga & Odek, JJ.A.) allowed the appeal by the Kenya Tea Growers Association and Unilever Tea Kenya Limited against an order of the Employment and Labour Relations Court (Mbaru, J.) of 17th January 2018, made in consolidated proceedings arising from a 2017 tea-industry strike over the review of a CBA. The impugned order, made orally at an adjourned hearing of an interlocutory application, reinstated unconditionally 336 employees summarily dismissed for participating in a strike in breach of subsisting court orders. The Court held that reinstatement under section 49 of the Employment Act is a discretionary, substantive remedy to be granted normally only upon full hearing, having regard to the factors in section 49(4), and not as a provisional or interlocutory measure. Since the summary dismissals were a contentious issue supported by prima facie documentary evidence, and since a pending application sought clarification of the earlier return-to-work order, the reinstatement was improper: it pre-empted that application, impeded adjudication of the consolidated claims, and sat uneasily with the earlier injunctions. The Court set aside the reinstatement order and dismissed the oral application for reinstatement, awarding costs to the appellants. The judgment binds subordinate courts and the ELRC: reinstatement cannot be ordered provisionally on an oral application without a full hearing.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether reinstatement can properly be ordered as an interlocutory measure on an oral application before full hearing of the substantive dispute
  2. 2.Whether the order of reinstatement made on 17th January 2018 was made without jurisdiction and without a formal application
  3. 3.Whether the impugned order contravened the appellants' right to fair hearing, pre-empted pending applications, and nullified prior court orders
  4. 4.Whether the order interfered with the appellants' managerial rights and was against public policy

Key legal issues

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01

Whether reinstatement may be granted at an interlocutory stage

Holding

No. Reinstatement is a discretionary, substantive remedy under section 49 of the Employment Act that must normally be granted only upon full hearing, considering the factors in section 49(4), including employee conduct and practicability.

Reasoning

The Court relied on section 49 and 49(4) of the Employment Act, its own prior decision in Kenya Tea Growers Association, and the interlocutory ruling in Richard Muimo Parsitau. It held that the summary dismissal was a contentious issue requiring judicial determination after a full hearing, so reinstatement could not be ordered provisionally on an oral application.

p. 3
02

Whether the impugned reinstatement order was proper given the pending application and prior orders

Holding

No. The order was erroneously granted without considering its implications on previous orders and pending proceedings, and it stultified the application dated 17th November 2017 for clarification of the return-to-work order.

Reasoning

Court orders restraining the strike were in force when the dismissals occurred; there was prima facie evidence of summary dismissal pursuant to the CBA and section 44(4) of the Employment Act; and the employers' application for clarification of 'without victimization of any nature' was pending. Reinstating the employees orally pre-empted that application and impeded proper adjudication.

p. 4

Legal principles established

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  • Reinstatement is a substantive remedy under section 49 of the Employment Act, discretionary and governed by the factors in section 49(4); it is not available as an interlocutory or provisional measure and should not be granted on an oral application without a full hearing

Court orders

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  1. 1.The appeal is allowed with costs to the appellants
  2. 2.The order dated 17th January, 2018 reinstating the employees unconditionally is set aside
  3. 3.The oral application for reinstatement is dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Employment and Labour Relations Court at Nairobi
ELRC No. 1578 of 2017
Jurisdiction invoked
First appeal to the Court of Appeal from the Employment and Labour Relations Court
Consolidated with
ELRC No. 1576 of 2017, ELRC No. 1579 of 2017, ELRC No. 2078 of 2017, Misc. Application No. 154 of 2017, Misc. Application No. 155 of 2017

Relief refused

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The Union's oral application for reinstatement of 362 employees pending hearing

Reinstatement is a substantive remedy that should not be granted at an interlocutory stage; the summary dismissal was a contentious issue requiring full judicial determination

p. 4

Costs

The appeal is allowed with costs to the appellants.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we find that the order of reinstatement was improperly made at an interlocutory stage through an oral application and erroneously granted without due consideration of its implication on the previous orders and the pending proceedings
p. 4Reinstatement not available as interlocutory relief
ordinarily reinstatement of an employee is a substantive remedy, not a temporary relief. The law does not contemplate that reinstatement issues (sic) as a provisional measure. It is a remedy that should normally be granted upon the full hearing of the employer, and employee.
p. 3Reinstatement as a substantive remedy under section 49 Employment Act
(ii) The order dated 17th January, 2018 reinstating the employees unconditionally is set aside. (iii) The oral application for reinstatement is dismissed.
p. 4Final orders setting aside the reinstatement

Issues in the judgment

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minor

The judgment refers to Unilever Kenya Limited as '2nd respondent' in describing the 1st appellant's members, whereas Unilever Tea Kenya Limited is the 2nd appellant

minor

Counsel for the respondent is rendered inconsistently as 'Achiando' and 'Achuondo' in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Tea Growers Association & another v Kenya Plantation and Agricultural Workers Union [2018] KECA 32 (KLR)", Case Analysis (2018). Civil Appeal No. 49 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/32/eng@2018-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.