Francis Ndavi & 527 others v Put Sarajevo General Engineering Company [2021] KEELRC 482 (KLR)
The bottom line
#Kenya's Employment Court threw out workers' Kshs 104 million salary petition because they hid parallel lawsuits and used invalid affidavits instead of filing a normal suit.
What this practically means
#Executive summary
#Key legal issues
#Sub judice / lis pendens - parallel proceedings in the Kangundo Magistrates Court
Some Petitioners had filed substantially similar salary claims before the Magistrates Court days before the Petition, and the failure to disclose this was fatal; the doctrine of lis pendens was implicated
The Respondent showed that Kangundo SPMCC Nos. 218-227 and 264 of 2018 raised similar breach-of-contract salary claims. The Petitioners did not disclose these proceedings and filed no affidavit denying the depositions. The Court held disclosure was necessary and its absence fatal, and that adding more Petitioners did not change the suit's character.
Defective affidavits sworn by Collins O. K'Oremo
The affidavits supporting the Petition were inadmissible because the deponent had been dismissed in March 2017, before the cause of action accrued, and was a legal stranger who did not disclose his source of facts or any legal injury
The gravamen of the Petition was non-payment of salaries from November 2017 to September 2018. K'Oremo had left employment in March 2017, before that period. He never rebutted the deposition of his dismissal and did not state where he obtained the facts deposed to, rendering his affidavits inadmissible.
Exhaustion of dispute resolution mechanisms under a collective bargaining agreement
The Respondent's defence that the Petitioners should have exhausted trade-union dispute resolution mechanisms failed because the Respondent did not prove the existence of a CBA or recognition agreement
The Respondent alluded to a collective bargaining agreement with a trade union. The Court held that if the Petitioners were union members they ought to have exhausted Part VII of the Labour Relations Act mechanisms, but the Respondent did not prove the CBA or recognition agreement to the required standard, so the defence failed.
Constitutional threshold / principle of avoidance
The Petition raised no constitutional dispute; the claims were ordinary breach-of-contract pleadings redressable in a normal suit, and the Petition was an abuse of court process
Applying the principle of avoidance from Communication Commission of Kenya v Royal Media Services, the Court found no semblance of a constitutional dispute pleaded. The gravamen was unpaid salaries recoverable in an ordinary cause, so the constitutional petition was misconceived and abusive.
Legal principles established
#- A party invoking constitutional jurisdiction must plead a real constitutional dispute; ordinary breach-of-contract claims must be brought as normal suits (principle of avoidance)
- Non-disclosure of parallel proceedings before a subordinate court is fatal to a petition
- Affidavits sworn by a person who is a legal stranger to the dispute and without disclosed source of facts are inadmissible
Court orders
#- 1.The Petition is dismissed with costs to the Respondent
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction invoked by Petition alleging breach of contract/fair labour practice (Article 41 fair labour practices); objection raised under section 6 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Ndavi & 527 others v Put Sarajevo General Engineering Company [2021] KEELRC 482 (KLR)", Case Analysis (2021). Petition No 70 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/482/eng@2021-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.