Kudheiha v Association of Physically Disabled of Kenya [2014] KEELRC 517 (KLR)
The bottom line
#Kenya's Industrial Court declined to decide a union-employer pay dispute itself, instead sending it to the Commissioner for Labour to investigate and report back.
What this practically means
#Executive summary
#Key legal issues
#Determination of the 10 disputed clauses of the Collective Bargaining Agreement
The court did not determine the clauses itself but referred the contentious issues to the Commissioner for Labour to hear oral evidence, memoranda and documentation and determine the issues, with a report due within sixty days
The court appreciated the respective positions of the parties as earnest industrial relations positions deserving respect. Balancing the claimant's demands against the respondent's pleaded financial incapacity as an NGO dependent on specified donations, the court considered it appropriate that the Secretary for Labour scrutinise and analyse the positions to arrive at an agreed and acceptable outcome, and retained oversight via a report and mention date.
Respondent's financial capacity to meet the union's demands
The respondent's plea of adverse economic circumstances was recognised as a position to be respected and weighed in the referral, not rejected
The respondent, registered under the NGO Act and funded by specified donations that do not cover recurrent expenditure, pleaded loss-making operations and inability to meet the CBA terms, having written on 4th January 2010 seeking the claimant's understanding of extenuating circumstances. The court treated this as an earnest position requiring scrutiny by the labour machinery rather than an outright rejection.
Legal principles established
#- Where parties' positions reflect earnest industrial relations exercises, the court may refer unresolved collective bargaining issues to the Commissioner for Labour for hearing and determination
Court orders
#- 1.The matter be and is hereby referred to the Commissioner for Labour who by himself or through his appointed Labour Officer shall hear and determine the contentious issues in dispute by the parties
- 2.The Commissioner or his appointed agency and official shall hear oral evidence, and address memoranda, documentation and other data presented by the parties in facilitating such determination of the issues in dispute
- 3.The Commissioner is directed to furnish this court with a report and the subject within sixty days of these orders of court
- 4.Mention on 2nd July, 2014 at 900 hours to enable receipt of a report on determination by the Commissioner for Labour
- 5.Each party shall bear its costs of this claim
- Jurisdiction invoked
- Jurisdiction as the Industrial Court of Kenya over trade disputes referred under the Labour Relations framework; dispute reported to the Minister for Labour and referred to the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kudheiha v Association of Physically Disabled of Kenya [2014] KEELRC 517 (KLR)", Case Analysis (2014). Cause No. 304 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/517/eng@2014-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.