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ELRCDismissedNot stated on the face of the judgment (interlocutory Notice of Motion dated 23rd January, 2019)

Kenya Tea Growers Association v Kenya Plantation & Agricultural Works Union [2020] KEELRC 1358 (KLR)

Employment and Labour Relations Court of Kenya
26 February 2020
1,648 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled dismissed employees lose their right to company housing, because housing benefits end when employment ends.

What this practically means

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Executive summary

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The Kenya Plantation & Agricultural Workers Union filed a Notice of Motion dated 23rd January 2019 under Section 12 of the Employment and Labour Relations Court Act and Section 17 of the Court's Procedure Rules, seeking conservatory orders restraining the Respondents from evicting dismissed employees from company quarters pending determination of Nairobi ELRC No 1578 of 2017 (KTGA v KPAWU), and consolidation with that suit. The application was supported by the affidavit of Henry Omasire, and arose after the Court of Appeal on 20th December 2018 set aside the interlocutory reinstatement orders of 17th January 2018, whereupon the Respondents issued dismissal and one-month vacation notices requiring employees to vacate company houses by 28th January 2019. The 1st Respondent, through the affidavit of its CEO Apollo Kiarii, and the 2nd Respondent, through Legal Counsel Lydia Musili, opposed the application, contending that the employees stood dismissed, that company housing is a fringe benefit lapsing with termination under Section 44 of the Employment Act and Clause 17(b) of the CBA, that the orders sought would amount to reinstatement contrary to the Court of Appeal judgment and interference with managerial prerogative, and questioning the forum. Justice Hellen Wasilwa, by judgment delivered on 26th February 2020, held that the effect of the Court of Appeal's decision was that the union members stand dismissed and the ELRC could not reverse that finding; absent an employment relationship, the members could not continue occupying company houses. The court found the orders sought not tenable, dismissed the application, directed that the main claim proceed with the two files consolidated, and ordered costs in the cause.

Questions the Court framed

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

  1. 1.Whether conservatory orders should issue restraining the Respondents from evicting dismissed employees from company houses pending hearing of the main suit
  2. 2.Whether the application should be consolidated with Nairobi ELRC No 1578 of 2017
  3. 3.Who should bear costs of the application

Key legal issues

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01

Whether conservatory orders restraining eviction could issue notwithstanding the Court of Appeal judgment setting aside reinstatement

Holding

The orders sought were not tenable because the employees stand dismissed and the ELRC cannot reverse the Court of Appeal's finding

Reasoning

The court noted the employees still occupying company houses had been dismissed, and that the dismissal was confirmed by the Court of Appeal's order of 20th December 2018 setting aside the interlocutory reinstatement orders of 17th January 2018. The effect of that decision was that the union members stand dismissed, and this Court cannot reverse that finding. With no subsisting employment relationship, continued occupation of company houses could not be sustained by interim relief.

p. 3
02

Whether granting the conservatory orders would amount to reinstatement contrary to the Court of Appeal judgment

Holding

Effectively yes - the court declined to grant orders that would achieve reinstatement-like occupation of company housing

Reasoning

The 1st Respondent contended that granting the orders would be tantamount to reinstatement of the employees contrary to the Court of Appeal judgment, and would interfere with managerial prerogative. The court, examining all averments, agreed that with dismissal confirmed, the members were no longer employees and their continued occupation of company housing could not be countenanced pending the main suit.

p. 2
03

Whether the matter should proceed to hearing of the main claim

Holding

Yes, the two files having been consolidated, the main claim is to proceed to hearing

Reasoning

Although the interim application failed, the court directed that the substantive dispute over the dismissals be determined at the full hearing of the main claim, the two files having already been consolidated. The interim dismissal therefore does not determine the lawfulness of the dismissals, which remains pending in the consolidated suit.

p. 3

Legal principles established

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  • Once the Court of Appeal sets aside reinstatement orders, the employment relationship is severed and dismissed employees cannot continue occupying company houses

Court orders

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  1. 1.The application dated 23rd January, 2019 is dismissed
  2. 2.The matter to proceed with the hearing of the main claim, the two files having been consolidated
  3. 3.Costs in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 12(1), (2), (3) and (4) of the Employment and Labour Relations Court Act, 2011 and Section 17 of the Employment & Labour Relations Court (Procedure) Rules
Consolidated with
Nairobi ELRC No 1578 of 2017 between Kenya Tea Growers Association vs Kenya Plantation & Agricultural Workers Union

Relief refused

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Conservatory order restraining eviction of affected employees from company quarters

The employees stand dismissed following the Court of Appeal judgment of 20th December 2018, severing the employment relationship, and this Court cannot reverse that finding

p. 3

Certification as urgent and ex-parte hearing

Determined inter partes; the application was dismissed

Costs of the application to the applicant

Costs were ordered to be in the cause

p. 3

Costs

Costs in the cause

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.

The effect of the Court of Appeal’s decision is that the union members stand dismissed and this Court cannot reverse that finding.
p. 3Effect of Court of Appeal judgment on reinstatement
The members therefore not being employees of the Respondent cannot continue occupying company houses as there is no employment relationship between them and the Respondent the same having been severed after the dismissal.
p. 3Entitlement to company housing follows subsistence of employment
This Court therefore finds that the orders sought are not tenable. The application is therefore dismissed accordingly.
p. 3Disposition - dismissal of the application
This matter can therefore proceed with the hearing of the main claim, the two files having been consolidated accordingly.
p. 3Final orders - main claim to proceed, files consolidated
Costs in the cause.
p. 3Costs order

Issues in the judgment

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minor

The full names of the 1st and 2nd Respondents and the applicant's own case number are not stated in the judgment extract; parties are identified only through the pleadings described

minor

Internal inconsistency in the pleaded cause numbers - the consolidated suit is referred to as both ELRC No 1578 of 2017 and ELR No. 1578, 1576 and 1579 all of 2016

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Tea Growers Association v Kenya Plantation & Agricultural Works Union [2020] KEELRC 1358 (KLR)", Case Analysis (2020). Not stated on the face of the judgment (interlocutory Notice of Motion dated 23rd January, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1358/eng@2020-02-26

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