Wario Gorise v Vicky Nyaithiru Kabetu (Director, Estate Muthithi Plantation) [2013] KEELRC 708 (KLR)

Industrial Court of Kenya

24 July 2013

LNLinnet Ndolo

954 words in judgment

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The bottom line

A Kenyan worker who accepted payment through Ministry of Labour conciliation could not sue his former employer over the same dispute years later — his case was dismissed.

What this practically means

Executive summary

The Claimant, employed by the Respondent as a night security guard from 2nd November 1995 at a daily rate of Kshs. 110, sued for wrongful and unlawful verbal termination of his employment on 9th September 2003 and for unpaid employee dues, including leave, public holidays, terminal benefits, notice pay, overtime and salary increment, plus general damages, costs and interest. He alleged the termination followed his complaint to the Kenya Plantation and Agricultural Workers Union. The Respondent admitted the termination, asserted the Claimant was a casual/standby employee who had been paid terminal dues of Kshs. 14,646.60 as full and final payment, and raised the conciliation history and limitation. The Court framed a single issue: whether the claim was sustainable in light of the conciliation processes at the Ministry of Labour. Two Chief Industrial Relations Officer reports (24th May 1999 and 28th September 2008) recorded recommendations adopted with the parties' participation - the second adopting payment of Kshs. 14,646 in final benefits. Guided by Article 159(2)(c) of the Constitution and Section 47 of the Employment Act, and applying its earlier decision in Elizabeth Wanjiru Njogu, the Court held that a party who voluntarily submits to ADR and benefits from it cannot later question the process absent manifest miscarriage of justice or contravention of law. The Claimant never objected to the conciliation outcomes and admitted receiving payment. His suit, filed two years after the last conciliation, was held to be an abuse of court process and dismissed with no order for costs.

Key legal issues

Effect of concluded conciliation processes at the Ministry of Labour on a subsequent court claim

Holding

The claim is unsustainable because the Claimant voluntarily submitted to two conciliation processes whose outcomes he accepted and benefited from, without objection

Reasoning

Article 159(2)(c) of the Constitution promotes alternative dispute resolution, and Section 47(1) & (2) of the Employment Act provides for resolution of employment disputes before a Labour Officer. The Claimant, represented by his Union, participated in two conciliations, did not object to the recommendations, and admitted receiving payment. Following the Court's earlier decision in Elizabeth Wanjiru Njogu, the Court will not interfere absent manifest miscarriage of justice or contravention of law.

p. 3

Whether the suit constitutes abuse of court process

Holding

Yes - filing the claim two years after the last conciliation process, without having objected to it, was an abuse of process

Reasoning

The Court found no evidence the Claimant objected to the Conciliator's recommendations and noted he did not deny receiving the final benefits agreed upon. Having reaped the benefits of ADR, he could not then litigate afresh; the suit filed two years later was accordingly an abuse of the court process and was dismissed.

p. 3

Legal principles established

A party who voluntarily submits to ADR and benefits from it cannot later question the process in court unless there was manifest miscarriage of justice or contravention of the Constitution or written law

Court orders

1.The Claimant's suit is dismissed
2.No order for costs

Authorities

Legislation

Constitution of Kenya, 2010Article 159(2)(c)
Employment Act, 2007Section 47(1) & (2)

Cases cited (1)

Elizabeth Wanjiru Njogu Vs Kangei Nyakinyua Building Co. Limited
Industrial Court Cause No. 385 of 2011

Jurisdiction invoked: Industrial Court of Kenya jurisdiction over employment disputes (Constitution of Kenya, 2010, Article 159(2)(c) invoked as guiding principle; Employment Act, 2007 Section 47(1) & (2))

Key timeline

Practical implications

Frequently asked questions

Later judgments citing this (2)

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Joseph Mukhwana Masinde v Hakika Transport Services Limited [2019] KEELRC 1786 (KLR)
[2019] KEELRC 1786 (KLR)2 May 2019applied
Kenya Shoe and Leather Workers Union v Modern Soap Factory [2018] KEELRC 1665 (KLR)
[2018] KEELRC 1665 (KLR)18 Jan 2018followed

Cite this brief

Caselaw, "Wario Gorise v Vicky Nyaithiru Kabetu (Director, Estate Muthithi Plantation) [2013] KEELRC 708 (KLR)", Case Analysis (2013). Cause No 1107 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/708/eng@2013-07-24

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