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ELRCDismissedNot stated in the judgment (Memorandum of Claim dated 6th October 2020)· [2021] KEELRC 723 (KLR)

Kenya Engineering Workers Union v Kenya General Industries Limited [2021] KEELRC 723 (KLR)

Employment and Labour Relations Court
21 October 2021
LNLINNET NDOLO
853 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court dismissed a union's entire claim because it presented written arguments but called no witnesses to prove its facts.

What this practically means

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Executive summary

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The Claimant union, which enjoys a Recognition Agreement with the Respondent and had negotiated successive CBAs (the last signed on 16th November 2018), claimed on behalf of the Respondent's unionisable employees. It sought declarations that continuous fixed term contracts violated the CBA, confirmation of 34 named employees to permanent and pensionable terms backdated to first engagement, or alternatively service gratuity and/or severance pay, reinstatement of terminated employees or 12 months' compensation for unlawful termination, and costs. The Claimant relied on Article 41 of the Constitution and Section 37 of the Employment Act. The Respondent maintained that fixed term contracts were lawful, that it bore no obligation to renew contracts, that non-renewal was not redundancy, that outsourcing was a business prerogative, and that Covid-19 economic hardship prevented different terms. In an earlier interlocutory ruling the court had noted the dispute involved convoluted factual issues requiring viva voce evidence. Nevertheless, the Claimant called no testimony and relied solely on written submissions. The court held that the elaborate prayers required proof by hard evidence - that the contracts breached the CBA, the basis for gratuity or severance, and the case for unlawful termination - none of which was established. The entire claim failed and was disallowed, with each party bearing its own costs. Judgment was delivered virtually at Nairobi on 21st October 2021 by Linnet Ndolo, Judge.

Key legal issues

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01

Failure to adduce evidence in support of the claim

Holding

The claim failed in its entirety because the Claimant called no testimony and relied only on written submissions

Reasoning

The court had, in an earlier interlocutory ruling, warned that the dispute involved convoluted matters of fact requiring viva voce evidence. Despite this, the Claimant chose not to call any witness. The elaborate prayers required proof that the fixed term contracts were contrary to the CBA, a basis for gratuity or severance, and a case of unlawful termination. Such matters of fact could only be proved by hard evidence, not submissions, so the claim was disallowed.

p. 2

Legal principles established

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  • A party who seeks a wide range of remedies must call evidence in support of each of them; written submissions cannot substitute for proof of factual claims

Court orders

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  1. 1.The Claimant's entire claim fails and is disallowed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 41
  • Employment ActSection 37
Jurisdiction invoked
Article 41 of the Constitution and Section 37 of the Employment Act invoked as the substantive basis of the claim

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 Engineering Workers Union v Kenya General Industries Limited [2021] KEELRC 723 (KLR)", Case Analysis (2021). Not stated in the judgment (Memorandum of Claim dated 6th October 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/723/eng@2021-10-21

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