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ELRCOtherCivil Suit 69 of 2010· [2012] KEELRC 224 (KLR)

KENYA HOTELS AND ALLIED WORKERS UNION v PALACINA HOTEL (THE RESIDENCE AND SUITES) [2012] KEELRC 224 (KLR)

Industrial Court of Kenya
26 October 2012
ABAbuodha
1,290 words in judgment
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The bottom line

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A Kenyan employment court refused to decide a worker's unfair dismissal claim because he never appeared to give evidence himself.

What this practically means

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Executive summary

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The Union, on behalf of employee John Mumo, claimed he was unlawfully locked out by the respondent hotel in November 2008 after being told to stay away pending communication that never came, following investigations into alleged credit card fraud in which colleagues were discharged but he was not. The Union sought reinstatement without loss of service and benefits, or in the alternative a declaration that the termination was unprocedural and 12 months' dues, plus notice pay, unpaid public holiday allowance (22 days), 60 days' leave, and arrears of minimum wage and house allowance under Gazette Notice No. 69. The respondent denied the promotion alleged, attributed the pay restructuring to a CBA itemising salary and house allowance separately, asserted the employee had exhausted his 72 days' leave, and contended that after recording a statement on 4th November 2008 concerning the fraud he had been on the run. The Court first clarified that section 73(3) of the Labour Relations Act, governing referrals by authorised representatives, does not preclude the actual claimant from adducing evidence; a representative has audience rights only, akin to an authorised agent under the Civil Procedure Act and Rules. Holding the documents on record insufficient and noting the employee's unexplained absence lent credence to the fugitive allegation, the Court declined to determine the claim and directed that the matter be fixed for full hearing at a date convenient to the parties, with Mr. Mumo to give evidence. Judgment dated and delivered at Nairobi on 26th October 2012 by Abuodha J.

Key legal issues

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01

Capacity to adduce evidence under section 73(3) of the Labour Relations Act

Holding

The authorised representative rule does not bar the aggrieved employee from giving evidence; an authorised representative, like an authorised agent under the Civil Procedure Act and Rules, has a right of audience only

Reasoning

The Court read section 73(3)'s rationale as procedural convenience for multi-employee trade disputes, not as a prohibition on parties testifying. Analogising to the authorised agent regime under the Civil Procedure Act and Rules, it held an advocate merely has audience rights and cannot adduce evidence for the person on whose behalf he appears.

p. 2
02

Whether the claim could be determined on the material on record without the employee's testimony

Holding

No - the claim could not be determined until Mr. John Mumo appeared and gave evidence in support of the claim

Reasoning

The documents filed with the memorandum of claim were not supportive enough for a just determination. The employee's absence lent credence to the respondent's assertion that he had been on the run since the credit card fraud investigation, so the Court directed a full hearing with the employee's evidence.

p. 2

Legal principles established

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  • Section 73(3) of the Labour Relations Act does not preclude the actual claimant or respondent from appearing in Court to adduce evidence; an authorised representative has a right of audience but no capacity to give evidence on behalf of the person represented
  • Where several unionisable employees share a common cause of dispute, the court may receive evidence of a few claimants and make a generic determination applying to the others

Court orders

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  1. 1.That the matter be fixed for full hearing at a date convenient to the parties
  2. 2.That all parties, especially Mr. John Mumo, appear before the Court and give evidence in support of the claim

Authorities

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Legislation

  • Labour Relations Actsection 73(3)
  • Civil Procedure Act
  • Civil Procedure Rules
  • Gazette Notice No. 69minimum wage provisions
Jurisdiction invoked
Referral of a trade dispute under the Labour Relations Act (section 73(3) discussed); Industrial Court jurisdiction over trade disputes

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 HOTELS AND ALLIED WORKERS UNION v PALACINA HOTEL (THE RESIDENCE AND SUITES) [2012] KEELRC 224 (KLR)", Case Analysis (2012). Civil Suit 69 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2012/224/eng@2012-10-26

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