1 By the Notice of Motion application dated 6th December 2024, the Claimant/Applicant seeks the following orders;
I. That this application be certified as urgent, be heard ex parte and service thereof be dispensed with in the first instance.
II. That an order be and is hereby issued restraining the 1st and 2nd Respondent’s Directors and or Managers by themselves, their agents, assigns, servants and or any of their representatives from approaching, meeting, coercing, inciting, transferring, terminating, dismissing any of its employees on account of trade union membership and/or intimidating any of its employees to recant their membership and or from joining Kenya Plantation & Agricultural Workers Union, pending the full hearing and determination of this application and cause.
III. That an order be and is hereby issued directing the 1st and 2nd Respondents to allow Kenya Plantation & Agricultural Workers Union to meet all its workers, and or hold a workers meeting with all employees, upon the Applicant’s request, at the Respondents’ premises during lunch hour for purposes of exercising their freedom of association and right to collective bargaining pending the full hearing and determination of this application and cause.
IV. That an order be and is hereby issued directing the 1st and 2nd Respondents by themselves, agents, assigns, servants, and or representatives from requiring employees to work overtime and thereafter forfeit overtime pay for work done in excess of regular working hours contrary to the provisions of section 6[1], [2], and [3] of the Regulations of Wages, and conditions under the Employment Act.
V. That an order be and is hereby issued directing the Commissioner for Labour and Social Protection, for purposes of ensuring compliance with sections 6[1], [2], and [3] of the Regulations of wages, to inspect and examine wage sheets, employment records and or payment records of the 1st and 2nd Respondents and file a report on payment or non-payment of overtime for work done in excess of the regular hours worked by employees in the employment of the 1st and 2nd Respondent for the period September 2011 to the date of this court's order.
2 The application is premised on the grounds set out on the face of the application, and the affidavit in support thereof, sworn by the Applicant on 15th January 2025.
3 The Respondent didn’t file a replying affidavit or grounds of opposition to the application.
4 the parties filed their respective written submissions following this Court's directive.
Determination
5 Applications like suits only succeed where their merit has been demonstrated. The fact that an application isn’t resisted in one of the ways the law provides isn’t a guarantee that the application will succeed. It is through this lens that I consider the Applicant’s instant application.
6 I have carefully considered the Applicant’s application, the reliefs it seeks, and the supporting affidavit vis-à-vis the statement of claim, and the reliefs sought thereunder, and undertake to render myself on the application measuredly, to avoid the risk of embarrassing the trial in respect of the main suit.
7 The parties filed detailed submissions. Both were couched as though they were in respect of the main. This underscores the necessity for this Court to approach the application as above stated.
8 This Court has considered the material presented to it and holds that the justice of the Applicant’s application in its circumstances requires that the following order be granted;
I. Pending the hearing and determination of the Application, a temporary injunction is issued restraining the 1st and 2nd Respondents, their Directors, managers, agents, assigns, servants, and or whosoever, from intimidating, coercing, and inciting their employees against joining the Claimant Union, and harassing, transferring, terminating or dismissing any of their employees on account of trade union activities and or membership.
II. The main suit herein shall be heard on a priority basis.
9 Orders accordingly.
Read, signed and delivered virtually in Mombasa this 22nd day of May, 2025.