Kenya Plantation & Agricultural Workers Union v Kongoni River Farm (Star Division) [2020] KEELRC 1108 (KLR)
The bottom line
#A Kenyan court reinstated a dismissed employment case but struck out settlement documents because 'without prejudice' talks can't be used in court if no deal was reached.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether without prejudice documents exchanged during settlement negotiations are properly on record and admissible
- 2.Whether there is good cause to re-open the file and reinstate the suit dismissed on 2nd January, 2020 pursuant to the court's directions of 3rd December, 2019
Key legal issues
#Admissibility of without prejudice materials
The without prejudice annexures to the claimant's affidavit were improperly filed and are expunged
The court reasoned that documents exchanged in settlement negotiations remain without prejudice and cannot be used outside those negotiations. Such communications become admissible only where a binding agreement resulted from the negotiations or to show that negotiations occurred. Since the parties' negotiations did not result in an agreement, the records were improperly before the court and were struck out.
Whether the suit should be reinstated
The application was allowed; the file was re-opened and the suit reinstated on condition the claimant set it down for hearing within 14 days
The court weighed the claimant's repeated efforts to have the suit heard against various lapses, the age of the file and the consent directions of 3rd December, 2019. The allegations - violations of sections 20 and 21 of the Employment Act - were serious and merited determination on the merits, which would develop employment and labour law. Reinstatement was granted subject to a 14-day condition.
Legal principles established
#- The without prejudice rule, founded on public policy, protects statements made in settlement negotiations from being relied upon in court if negotiations fail
- Without prejudice communications are admissible only where a binding agreement arose out of them or to show that negotiations took place
Court orders
#- 1.All annexures to the affidavit of Cliffton Saya dated 20th January, 2020 marked 'without prejudice' are expunged and not to be used in the proceedings
- 2.The file is re-opened
- 3.The suit dismissed on 2nd January, 2020 is reinstated
- 4.The claimant has 14 days to move the court and have the matter heard, failing which the respondent may move the court for dismissal of the suit
- 5.Costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not expressly stated; Employment and Labour Relations Court jurisdiction over a claim alleging violation of sections 20 and 21 of the Employment Act, 2007
Relief refused
#Reliance on without prejudice annexures/records of settlement negotiations
The without prejudice communications did not result in a binding agreement and are therefore inadmissible and improperly on record
Costs
Costs in the cause
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, application dated 20th January, 2020 is hereby allowed and the following orders are issued; (a) The file is re-opened; (b) The suit dismissed on 2nd January, 2020 is hereby reinstated;
the file shall be re-opened and the suit reinstated save on condition the claimant shall commence the process of having the claim heard within the next 14 days and failure to which the respondent shall be at liberty to move the court for the dismissal of the suit.
All the annexures to the affidavit of Cliffton Saya dated 20th January, 2020 and marked ‘without prejudice’ are hereby expunged.
The rationale is that the offer made on a without prejudice basis is not an agreement capable of being enforced.
Issues in the judgment
#The application is referred to as dated 20th January, 2010 at the start and 20th January, 2020 later in the judgment, an apparent typographical inconsistency
The case number of the suit itself is not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation & Agricultural Workers Union v Kongoni River Farm (Star Division) [2020] KEELRC 1108 (KLR)", Case Analysis (2020). Not stated in judgment (application dated 20th January, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1108/eng@2020-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.