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ELRCDismissedCause No. 1106 of 2012· [2016] KEELRC 1018 (KLR)

Kenya Petroleum Oil Workers Union v National Oil Corporation of Kenya [2016] KEELRC 1018 (KLR)

Employment and Labour Relations Court
10 June 2016
OMOnesmus Makau
526 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a union's bid to block an employee's dismissal because the dismissal had already happened, leaving nothing to decide.

What this practically means

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Executive summary

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The Claimant union brought this claim on behalf of its member, Mr. Patrick Ondari, a loader employed by the Respondent at its Industrial Area terminus since June 2006, seeking an order barring the Respondent from dismissing him pending conclusion of the dispute settlement process under the Collective Agreement. The grievant had been suspended on suspicion of siphoning fuel in collusion with a truck driver. The Respondent filed a defence contending the suspension was lawful and proper to pave way for investigations. At the hearing the grievant testified as CW1 and the Respondent called no witness. By the time of judgment the grievant had already been dismissed by letter dated 1.11.2012, and the Respondent submitted the suit had been overtaken by events. The court agreed: the only prayer in the suit was to stop the intended dismissal, which had already occurred, so there was nothing to determine on the merits. Noting that no evidence established whether the alternative dispute resolution mechanism had been exhausted, the court found the substratum of the suit had vanished and dismissed the suit without considering its merits, with each party bearing its own costs. An amended memorandum of claim seeking reinstatement had earlier been struck out for want of leave, so the original claim alone was determined.

Key legal issues

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01

Whether the Suit was overtaken by events after the grievant's dismissal

Holding

The Suit was overtaken by events since the only relief sought was to bar dismissal, which had already occurred

Reasoning

The only prayer sought was an order restraining the Respondent from dismissing the grievant pending conclusion of the dispute settlement machinery. The grievant was dismissed on 1.11.2012 before conclusion of the Suit. No evidence proved whether the alternative dispute resolution mechanism had been exhausted. With the dismissal already effected, the substratum of the Suit had vanished, leaving nothing to determine on the merits.

p. 1

Legal principles established

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  • A suit whose substratum has vanished, being overtaken by events, should be dismissed without consideration of the merits.

Court orders

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  1. 1.The Suit is dismissed
  2. 2.Each party to bear her own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Labour Relations Act in a dispute under a Collective Agreement

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, "Kenya Petroleum Oil Workers Union v National Oil Corporation of Kenya [2016] KEELRC 1018 (KLR)", Case Analysis (2016). Cause No. 1106 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1018/eng@2016-06-10

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