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ELRCStruck OutCause Number 356 of 2013· [2015] KEELRC 1068 (KLR)

Jane Maureen Mbuya Okedi v United (EA) Ware House Limited [2015] KEELRC 1068 (KLR)

Industrial Court of Kenya
29 May 2015
JRJames Rika
619 words in judgment
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The bottom line

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A Kenyan employment claim was struck out because the worker had already settled her dispute at the Labour Office and did not disclose it.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a Clerk from October 2003 until her summary dismissal on 29th June 2012 over alleged involvement in warehouse theft, sought terminal benefits and compensation for unfair termination. Before filing suit, she lodged a complaint with the County Labour Office, Mombasa. The Labour Officer convened conciliation meetings on 10th and 30th August 2012, at which it was concluded she be paid salaries for March to June 2012 and pro-rata leave. She was paid Kshs 59,266, signed a Payment Agreement Certificate dated 6th September 2012 and a Clearance Form on 5th September 2012 acknowledging payment and discharging the Company from further claims, and was issued a Certificate of Service. She conceded in evidence that settlement was reached on conciliation but said nothing of it in her pleadings. Adopting its earlier ruling in Nuru Mukwanja Wawire v. Total Security Surveillance Limited, the court held that although Section 47 of the Employment Act 2007 allows summarily dismissed employees to complain to the Labour Office in addition to the Industrial Court, where parties have exercised their choice of forum under Article 159(2)(c) of the Constitution, the Court can only assist in giving effect to the outcome of the non-adjudicatory mechanism. Holding the claim an abuse of the Labour dispute settlement process, the court struck out the claim, directed that any fresh claims outside the Labour Office agreement be taken back to the Labour Officer, and made no order on costs.

Key legal issues

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01

Whether a claim for unfair termination is maintainable after conciliation and settlement at the Labour Office

Holding

The claim was struck out as an abuse of the Labour dispute settlement process; the Claimant had conciliated, been paid Kshs 59,266, signed a Payment Agreement Certificate and Clearance Form discharging the Company, and concealed the settlement in her pleadings.

Reasoning

The court relied on its earlier ruling in Nuru Mukwanja Wawire v. Total Security Surveillance Limited, adopting the position that where parties have exercised their choice of forum under Article 159(2)(c), the Court can only assist in giving effect to the outcome of the non-adjudicatory mechanism. The Claimant conceded in evidence that settlement was reached on conciliation, yet her pleadings said nothing of it, rendering the claim an abuse of process.

p. 2

Legal principles established

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  • Article 159 of the Constitution recognises alternative dispute resolution; where parties have chosen a forum and reached a settlement, the Court can only assist in giving effect to the outcome.
  • Even when a court has jurisdiction, it does not have to exercise it.

Court orders

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  1. 1.The Claim is struck out.
  2. 2.If the Claimant has further Claims outside the Agreement made before the Labour Officer, she can go back to the Labour Officer and make her fresh claims known.
  3. 3.No order on the costs.

Authorities

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Legislation

  • Employment Act 2007Section 47
  • Employment Act 2007Section 47(3) and 47(4)
  • Constitution of KenyaArticle 159(1)(2)(c)
  • Industrial Court (Procedure) Rules 2010Rule 27(1)(a)

Cases cited (1)

  • Nuru Mukwanja Wawire v. Total Security Surveillance Limited
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court; Industrial Court (Procedure) Rules 2010, Rule 27(1)(a)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Jane Maureen Mbuya Okedi v United (EA) Ware House Limited [2015] KEELRC 1068 (KLR)", Case Analysis (2015). Cause Number 356 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1068/eng@2015-05-29

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