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ELRCOtherApplication dated 22nd September 2020 with Statement of Claim filed 22nd September 2020· [2021] KEELRC 1042 (KLR)

Kenya Union of Domestic, Hotels Educational Institutions & Hospital Workers Union [Kudheiha] v Resort Kenya Limited [2021] KEELRC 1042 (KLR)

Employment and Labour Relations Court
10 September 2021
JRJames Rika
1,171 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to hear a union's pay and redundancy dispute because the union skipped the internal dispute steps agreed with the employer.

What this practically means

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Executive summary

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The Claimant Union, through an Application dated 22nd September 2020 supported by an Affidavit of General Secretary Albert Obed Njeru, sought orders compelling the Respondent casino employer to continue paying 50% salaries and arrears from May 2020, restraining declaration of redundancies, and paying full and final dues under the CBA upon closure of operations. The dispute arose from the closure of gaming premises during the Covid-19 pandemic: an Internal Memo of 25th March 2020 announced 50% salary payment for April 2020, and a further Memo of 18th May 2020 announced that no salaries would be paid from May 2020. The Union alleged this disregarded labour agreements and the Tripartite Agreement of 30th April 2020 between the Ministry of Labour, COTU-K and FKE, and amounted to unlawful redundancies. The Respondent filed submissions indicating a Replying Affidavit and Statement of Response, but these were not in the physical file; it urged the Court to decline jurisdiction until the dispute settlement procedure in the Recognition Agreement dated 2nd September 2014 was exhausted. The Court agreed, finding the Claimant had jumped the gun, that the Recognition Agreement creates an exhaustive Negotiation Procedure escalating to the Minister of Labour under the Labour Relations Act, 2007, and that the Tripartite Memorandum of Understanding supports social dialogue on Covid-19 workplace issues. Noting ongoing negotiations and the Claimant's acceptance of redundancy with full CBA packages as an alternative, the Court stayed its proceedings, directed the parties to exhaust their internal dispute settlement procedure, and allowed them to return to Court thereafter or whenever necessary. The ruling was dated, signed and released electronically on 10th September 2021.

Key legal issues

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01

Exhaustion of internal dispute settlement mechanism

Holding

The Claimant jumped the gun by filing without exhausting the Recognition Agreement's negotiation procedure; proceedings stayed pending exhaustion

Reasoning

Page 5 of the Recognition Agreement dated 2nd September 2014 creates an exhaustive Negotiation Procedure, with escalation to the Minister of Labour under the Labour Relations Act, 2007 upon failure of committee-level settlement. The Claimant filed the Claim and Application without completing this process. The mechanism is reinforced by the Tripartite Memorandum of Understanding of 30th April 2020, which calls on employers and employees to rely on existing social dialogue mechanisms in dealing with Covid-19 at the workplace. The parties were still negotiating during litigation, and the Claimant accepted redundancy with full CBA packages as an alternative, making court intervention premature.

p. 2
02

E-filing and completeness of the physical court record

Holding

Parties must ensure e-filed pleadings are placed in the physical file at their own cost

Reasoning

The Court could not trace the Respondent's Replying Affidavit or Statement of Response in the physical file, though the Respondent claimed to have filed them by e-filing. The Court held that a party filing through e-filing must follow up to ensure documents are in the physical file and bear the costs of downloading e-files, as otherwise the record becomes incomplete or confusing even for purposes of appeals. The Respondent was directed to follow up with the Registry.

p. 2

Legal principles established

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  • A court should not assume jurisdiction where parties have not exhausted the dispute settlement procedure prescribed in their Recognition Agreement

Court orders

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  1. 1.The Court stays its proceedings, and directs Parties to exhaust internal dispute settlement procedure under their Recognition Agreement
  2. 2.Parties may, during that process, in particular consider the Claimant's alternative prayer for declaration of redundancies
  3. 3.Parties shall move the Court upon exhaustion of their internal dispute settlement procedure or whenever necessary, for further orders
  4. 4.The Respondent shall follow-up with the Registry and ensure its Pleadings and Documents are in the physical file

Authorities

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Legislation

  • Labour Relations Act2007
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction, subject to exhaustion of dispute settlement procedure under the Parties' Recognition 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 Union of Domestic, Hotels Educational Institutions & Hospital Workers Union [Kudheiha] v Resort Kenya Limited [2021] KEELRC 1042 (KLR)", Case Analysis (2021). Application dated 22nd September 2020 with Statement of Claim filed 22nd September 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1042/eng@2021-09-10

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