Kenya Tea Growers Association & 1 other v Kenya Plantation & Agricultural Workers Union
The bottom line
#Kenya's Court of Appeal ruled that employees cannot be reinstated as a temporary measure during a case and that unions must disclose related court proceedings honestly.
What this practically means
#Executive summary
#Key legal issues
#Whether reinstatement can be ordered at an interlocutory stage
No; reinstatement is a substantive remedy to be granted only in exceptional circumstances after a full hearing, and the circumstances here (an outstanding High Court order prohibiting the strike notwithstanding which the employees went on strike) militated against such an order at the interlocutory stage.
The court relied on its own decision in Kenya Airways Ltd v Aviation & Allied Workers Union that reinstatement is discretionary and should be ordered only in very exceptional circumstances, and endorsed Rika J's statement that reinstatement is a substantive remedy normally granted upon full hearing. Since a High Court order had prohibited the strike and the Union appeared to have proceeded regardless, the employer could prima facie justify disciplinary measures; had the Judge considered these matters he would have declined the orders.
Material non-disclosure by the Union in seeking the ex parte injunction
The Union made no reference in its memorandum of claim and notice of motion to the pending High Court proceedings; had the Judge considered that, he would have discharged the interim orders and dismissed the Union's application.
The court found that the Union neither disclosed the High Court injunction in its pleadings before the Industrial Court nor appeared to have complied with the 14th October 2010 order. This non-disclosure, together with the outstanding order prohibiting the strike, constituted misdirection entitling the appellate court to interfere with the exercise of discretion by the lower court.
Whether the Industrial Court should have stayed its proceedings pending the constitutional petitions
Instead of a stay, the proper order was to transfer the constitutional petitions to the ELRC and consolidate them with the industrial cause, since the ELRC can determine constitutional issues within its jurisdiction.
The Judge had failed to address the employers' prayers for stay. Noting that both sets of proceedings arose from the same strike notice, and relying on Mugendi v Kenyatta University and JSC v Shollei on the ELRC's constitutional jurisdiction, the court held that transfer and consolidation in the ELRC best served the parties rather than a stay.
Legal principles established
#- Reinstatement is a substantive remedy, not an interlocutory one; it should not be granted as a provisional measure or except in very exceptional circumstances.
- An appellate court will not interfere with a discretionary decision of a lower court unless the judge misdirected himself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or the decision is plainly wrong.
- Where constitutional petitions raising issues within the ELRC's jurisdiction are pending, the appropriate course may be transfer and consolidation in the ELRC rather than a stay, since the ELRC can determine constitutional issues in its area of jurisdiction.
Court orders
#- 1.The orders of the Industrial Court issued on 22nd March 2011 are set aside
- 2.The Union's application dated 21st October 2010 is dismissed with costs to the appellants
- 3.Petition No. 62, 63 and 64 of 2010 are transferred to the ELRC to be consolidated or heard together with ELRC case no. 1281 of 2010
- 4.The employers' application dated 27th October 2010 is declared spent
- 5.The appellants shall have the costs of this appeal
- On appeal from
- Industrial Court of Kenya at Nairobi
- Industrial Cause No. 1281 of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Industrial Court under the applicable appellate framework (the judgment does not cite a specific provision)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Timothy Odhiambo Otieno v Nairobi Hospital Interested Party Kenya Hospital Association [2019] KEELRC 1252 (KLR)[2019] KEELRC 1252 (KLR)5 Jul 2019followed
Cite this brief
#Cite this brief
Caselaw, "Kenya Tea Growers Association & 1 other v Kenya Plantation & Agricultural Workers Union", Case Analysis (2018). Civil Appeal 258 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/336/eng@2018-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.