Kenya Shoe and Leather Workers Union v Techno-Plast Limited (Cause E781 of 2023) [2024] KEELRC 100 (KLR)
The bottom line
#A Kenyan court dismissed a union's bid to halt redundancies and reinstate workers, ruling the union jumped the gun by abandoning conciliation and that reinstatement cannot be ordered temporarily.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant's Notice of Motion dated 21st September 2023 is merited
- 2.Whether the Notice of Motion was premature in that conciliation had not been concluded
- 3.Whether the restraining orders sought meet the Giella v Cassman Brown injunction threshold
- 4.Whether reinstatement can be ordered as an interim remedy
Key legal issues
#Prematurity of suit before conclusion of conciliation
The Notice of Motion was filed prematurely and was unsustainable because the conciliation process the Claimant had initiated was abandoned without justification
The Claimant reported the trade dispute to the Cabinet Secretary, a conciliator was appointed and a meeting scheduled within five days, yet the union filed suit on 5th October 2023 before the conciliation began. Having invoked the process, the union was bound by it; it filed no affidavit justifying abandonment. Rule 5 of the ELRC Procedure Rules, 2016 requires a conciliator's report and certificate under Section 69 of the Labour Relations Act.
Interlocutory injunction
The Claimant failed the Giella test: though a prima facie case existed (Mrao test), no irreparable injury was proved and the balance of convenience did not favour it
The court applied Mrao Ltd v First American Bank for prima facie case, finding it established, but applying Nguruman Ltd v Jan Bonde Nielsen held irreparable injury unproved. On balance of convenience (Byran Chebii Kipkoech), the court was unpersuaded it tilted towards the union. Having failed all three conditions, the injunction threshold was not met.
Reinstatement as an interim remedy
Reinstatement under Section 12(3)(vii) ELRCA read with Section 49(3)(a) Employment Act is a substantive, final remedy not available provisionally absent compelling circumstances
The court held reinstatement can only be decreed where unjustifiable dismissal or termination is established and the court is satisfied it is the most efficacious relief. It is discretionary under Section 49(4) of the Employment Act and, per Rika J. in Alfred Nyungu Kimungui v Bomas of Kenya, should normally be granted only upon full hearing.
Legal principles established
#- Where a dispute has been referred to conciliation, a party may not abandon the process mid-way without a justified, compelling reason; conciliation is a binding and effective dispute resolution mechanism, not merely a stepping stone to the judicial forum
- Reinstatement is a final remedy ordinarily granted at the end of the hearing where dismissal or termination is found unjustifiable and it is the most efficacious relief
Court orders
#- 1.The Claimant's Notice of Motion dated 21st September 2023 is dismissed
- 2.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court Act, 2011 (Section 12) and Employment Act, 2007; interlocutory application in a trade dispute originally filed under Section 74 of the Labour Relations Act, 2007
Relief refused
#Interim order restraining the Respondent from recruiting new employees to replace the allegedly unlawfully declared redundant employees
Filed prematurely before conclusion of conciliation and, in any event, the injunction threshold was not met
Order reinstating the allegedly redundant employees pending hearing and determination of the suit
Reinstatement is a final, substantive remedy grantable at full hearing absent unique, special or compelling circumstances
Costs of the application against the Respondent
The court ordered each party to bear its own costs
Costs
Parties shall bear own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is the finding of the court that the instant Notice of Motion was filed prematurely and is thus unstainable.
Having failed to establish the three conditions, the Claimant union had failed to meet the threshold for the grant of an injunction.
As the Claimant has not demonstrated any unique, special or compelling circumstances to justify the remedy of reinstatement at this stage, the prayer is unmerited.
Non-adjudicatory mechanisms are anchored on Article 159(2)(c) of the Constitution of Kenya. They must be taken as binding and efiective dispute resolution mechanism, not merely as stepping stones to the judicial forum.
From the foregoing, it is discernible that the Claimant’s Notice of Motion dated 21st September, 2023 is for dismissal and it is accordingly dismissed.
Parties shall bear own costs.
Issues in the judgment
#Handwritten alteration of the number of affected employees in the trade dispute letter is noted by the court itself without authentication
Discrepancy between the number of employees said to be declared redundant (7 per the trade dispute letter, 72 per the applicant's submissions and list)
Court notes it had no record of what transpired at the conciliation meeting scheduled for 4th October 2023
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Shoe and Leather Workers Union v Techno-Plast Limited (Cause E781 of 2023) [2024] KEELRC 100 (KLR)", Case Analysis (2024). ELRC Cause (Nairobi) — Claimant's Notice of Motion dated 21st September 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/100/eng@2024-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.