Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedCause 460[N] of 2009· [2013] KEELRC 398 (KLR)

JOSEPH SAIKA ONGAYO V NEW WORLD INDUSTRIES LIMITED [2013] KEELRC 398 (KLR)

Industrial Court of Kenya
26 April 2013
JRJames Rika
1,434 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A worker's dismissal claim collapsed because it was filed under the wrong law and without the required ministerial certificate, so the court never heard the merits.

What this practically means

#

Executive summary

#
The Claimant, a Spray Painter employed by the Respondent since 1983 (or, per the Respondent, a General Labourer engaged in May 2006), alleged that on 14th August 2007 the Respondent's Director, Jugal Kishore Bhalla, terminated his contract after he reported late to an assignment at Kenya Breweries, Ruaraka, owing to heavy traffic. He sought a declaration that his lockout was unlawful, salary and allowances during the lockout, in the alternative terminal benefits, 12 months' salary compensation, costs and interest. The Respondent maintained the Claimant worked until 15th August 2007, received a Kshs. 2,000 advance that day, then absented himself habitually and without notice from 16th August 2007, entitling it to summarily dismiss; it counterclaimed Kshs. 5,974.25 notice pay and the Kshs. 2,000 advance. The Court did not resolve the factual dispute. Instead, applying Section 84 and Schedule 5 of the Labour Relations Act No. 14 of 2007, Rika J held that a dismissal dispute arising before that Act came into force had to be dealt with under the Trade Disputes Act, Cap 234. The reference to the Court should have been made under that Act, and no Certificate signed by the Minister and the Commissioner of Labour existed enabling the Court to take cognizance of the dispute; nor was it clear under which substantive law the pleadings and remedies were pursued. Accordingly, both the Claim and the Counterclaim were dismissed with no order on the costs, dated 26th April 2013 at Nairobi.

Key legal issues

#
01

Applicable substantive and procedural law to a pre-2007 dismissal dispute

Holding

The dispute, having arisen on 14th August 2007 before the Labour Relations Act came into force, should have been prosecuted under the Trade Disputes Act, Cap 234; the parties adopted the wrong procedural and substantive law.

Reasoning

Section 84 of the Labour Relations Act and its Schedule 5 preserve the Trade Disputes Act for dismissal and termination disputes arising before that Act came into force. The dispute was reported to the Minister in September 2007 under the Trade Disputes Act, and investigation proceeded under that Act, yet the Statement of Claim, Reply and Counterclaim were filed without clarity as to the governing law. The reference to this Court should have been made under the Trade Disputes Act with the requisite ministerial certificate.

p. 3
02

Cognizance of the dispute absent a certificate

Holding

Without a Certificate signed by the Minister and the Commissioner of Labour, the Court could not take cognizance of the dispute.

Reasoning

The Court found that no certificate had been issued enabling it to take cognizance of the dispute under the Trade Disputes Act. The parties appeared to have adopted a different procedural and substantive law from the Trade Disputes Act, and it was unclear under which substantive law the remedies sought by both parties should be considered. This jurisdictional defect obliged the Court to dismiss both the Claim and the Counterclaim rather than determine the merits.

p. 3

Legal principles established

#
  • Dismissal and termination disputes that arose before the coming into force of the Labour Relations Act, 2007 are governed by the Trade Disputes Act, Cap 234, and the Industrial Court can only take cognizance of such disputes upon a Certificate signed by the Minister and the Commissioner of Labour under that Act.

Court orders

#
  1. 1.The Claim is dismissed
  2. 2.The Counterclaim is dismissed
  3. 3.No order as to costs

Authorities

#

Legislation

  • Labour Relations ActSection 84; Schedule 5
  • Trade Disputes ActCap 234
Jurisdiction invoked
The reference to the Industrial Court should have been under the Trade Disputes Act, Cap 234 (per Section 84 and Schedule 5 of the Labour Relations Act No. 14 of 2007, applicable to pre-Act dismissal disputes); in the absence of a Certificate signed by the Minister and the Commissioner of Labour, the Court could not take cognizance of the dispute.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "JOSEPH SAIKA ONGAYO V NEW WORLD INDUSTRIES LIMITED [2013] KEELRC 398 (KLR)", Case Analysis (2013). Cause 460[N] of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/398/eng@2013-04-26

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