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ELRCDismissedCause No 288 of 2013· [2014] KEELRC 77 (KLR)

Suleiman Mwangema & 17 others v Baobab Beach Resort Mombasa [2014] KEELRC 77 (KLR)

Employment and Labour Relations Court
10 December 2014
OMO. N. Makau
1,047 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicant (respondent in the suit), through a Notice of Motion dated 8/9/2014 supported by the affidavit of Silvester Mbandi, sought a stay of proceedings and referral of the dispute to the shop steward and work committee under clause 11 of the Collective Bargaining Agreement, on the ground that the claimants - former employees dismissed in 2013 - filed suit without exhausting the four-tier ADR mechanism in the CBA, culminating in referral to the Coast Disputes Committee. The applicant relied on Section 59 of the Labour Relations Act and the decision of Rika J in ICC No. 1114 of 2013, contending there was no time limitation for lodging the dispute with the Committee. The claimants opposed, arguing the CBA does not displace the court's jurisdiction under Article 162 of the Constitution, that clause 11 applies only to existing employees, and that it was the applicant who abandoned the ADR. The court found the facts undisputed: the claimants were dismissed in 2013, a Recognition Agreement and CBA with an ADR clause existed, and pre-suit settlement attempts including recorded statements had occurred. Clause 11 was couched in mandatory terms, and no evidence showed the dispute passed through the prescribed steps. However, the proviso to clause 11(a) used the word 'may', making referral to the Coast Disputes Committee optional. Failure to exercise that option left the claimants free to sue individually before this court, the correct forum under Article 162. The Motion was dismissed with costs.

Key legal issues

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01

Whether the suit was prematurely filed before exhaustion of the CBA ADR mechanism

Holding

No - the ADR procedure in clause 11 was not exhausted, but the final step (referral to the Coast Disputes Committee) was optional, so the claimants were entitled to sue in court

Reasoning

The court found clause 11 of the Recognition Agreement mandatory in terms and confirming the parties' intention to settle disputes internally. However, the proviso used 'may' for referral to the Coast Disputes Committee or Joint Industrial Council. Since neither the union nor the applicant referred the dispute to the CDC, the claimants retained the right to sue individually. The court is the correct forum under Article 162 of the Constitution.

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02

Whether proceedings should be stayed to pave way for ADR

Holding

No - the Motion for stay and referral lacks merit

Reasoning

The request to refer the dispute to the shop steward and Work Committee was overtaken by events with respect to the time schedules in the proviso to clause 11(a), which automatically advances the dispute through steps not completed within specified periods. No evidence showed any report to the supervisor, shop steward or union branch officials.

p. 2

Legal principles established

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  • Where the proviso to a CBA dispute-resolution clause makes referral to the final ADR forum optional, failure to exercise that option opens the door for individual employees to sue in the Industrial Court

Court orders

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  1. 1.The Notice of Motion dated 8/9/2014 is dismissed with costs

Authorities

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Legislation

  • Labour Relations ActSection 58
  • Labour Relations ActSection 59
  • Constitution of KenyaArticle 162

Cases cited (1)

  • KENYA COMMERCIAL & ALLIED WORKERS UNION vs EAST AFRICAN PORTLAND CEMENT CO. LTD
    ICC NO. 1114 OF 2013 [2013] e KLR
Jurisdiction invoked
Article 162 of the Constitution

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, "Suleiman Mwangema & 17 others v Baobab Beach Resort Mombasa [2014] KEELRC 77 (KLR)", Case Analysis (2014). Cause No 288 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/77/eng@2014-12-10

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