JANET MUTHEU MARTIN v FUN AN SHOP LIMITED [2012] KEELRC 109 (KLR)
The bottom line
#Kenya's Industrial Court confirmed employees can sue directly under Section 87 of the Employment Act without first going to a labour officer.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection met the test in Mukisa Biscuit (pure point of law)
The objection failed because it required ascertainment of facts such as the existence of a recognition agreement and whether conciliation occurred.
Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court held that a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the opposite side are correct. Here, issues such as whether there was a recognition agreement between the union and the respondent and whether conciliation proceedings took place would require evidence, so the objection was improper.
Whether the claimant was obliged to report the dispute to a labour officer before filing suit
No; Section 87(1) gave the claimant a choice between complaining to a labour officer and filing suit in the Industrial Court.
The court read Section 87 of the Employment Act, 2007 as conferring a statutory election on the aggrieved party: to complain to a labour officer or lodge a complaint or suit in the Industrial Court. The claimant's election to file the suit therefore did not breach the law. Additionally, even if conciliation had been required, the appropriate outcome would be a stay of proceedings, not dismissal of the suit.
What is the consequence of a successful objection premised on failure to invoke statutory conciliation
At most a stay of proceedings, not dismissal of the case.
The court observed obiter that even if parties were to be directed to invoke the statutory conciliation process, a preliminary objection on such grounds would probably lead to a stay of the proceedings before the court rather than dismissal. This suggests that non-compliance with conciliation requirements is curable and does not extinguish the claim.
Legal principles established
#- A preliminary objection must raise a pure point of law and fails where any fact has to be ascertained or evidence required
- Under Section 87 of the Employment Act, 2007 the aggrieved party may elect to complain to a labour officer or lodge a suit in the Industrial Court, and the election to file suit is lawful
Court orders
#- 1.The respondent's preliminary objection is dismissed with costs
- 2.The parties are directed to fix a convenient hearing date at the registry on a priority basis
- Jurisdiction invoked
- Section 87 of the Employment Act, 2007 (disputes under contracts of service triable by the Industrial Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JANET MUTHEU MARTIN v FUN AN SHOP LIMITED [2012] KEELRC 109 (KLR)", Case Analysis (2012). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/109/eng@2012-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.