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ELRCDismissedNot stated in the judgment text· [2021] KEELRC 1978 (KLR)

Amalgamated Union of Kenya Metal Workers v Reliable Electrical Engineers (M) Limited [2021] KEELRC 1978 (KLR)

Employment and Labour Relations Court
18 March 2021
LNLINNET NDOLO
619 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Employment and Labour Relations Court at Mombasa (Linnet Ndolo, J) dismissed a union claim of unprocedural and unfair redundancy affecting 12 employees. The Claimant, proceeding by Memorandum of Claim as amended on 12th October 2019, alleged that the Respondent failed to notify it or the employees of the redundancy, failed to comply with Section 40 of the Employment Act and Clauses 3(c), 6, 7, 10, 15 and 25 of the Collective Bargaining Agreement, and refused to pay terminal dues under the redundancy clause. It sought declarations of unlawfulness, reinstatement or payment of tabulated terminal dues, 12 months' salary for unfair termination, and costs. The Respondent denied the claim, maintaining that the Grievants were still in employment and that no evidence proved termination. The parties elected to rely on pleadings and written submissions without calling witnesses. The court observed that the pleadings raised convoluted issues of fact ascertainable only through viva voce evidence; faced with a defence challenging the existence of the redundancy, the Claimant ought to have responded with evidence, not submissions. In its submissions the Claimant had also shifted focus to discrimination of 14 employees, temporary termination and terminal dues. Holding that the Claimant failed to discharge its evidential burden and could not testify through the back door of written submissions, the court dismissed the claim and ordered each party to bear its own costs. Judgment was delivered virtually on 18th March 2021 owing to COVID-19 restrictions.

Key legal issues

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01

Proof of redundancy and the evidential burden

Holding

The Claimant failed to prove the alleged redundancy; written submissions cannot substitute for evidence

Reasoning

The parties relied on pleadings and written submissions without viva voce evidence. The Respondent's defence asserted that the Grievants were still in employment. The court held that where the defence challenges the pleaded facts, the Claimant had to respond with evidence, not submissions, which it described as testifying through the back door.

p. 2
02

Discrepancy between pleadings and submissions

Holding

The Claimant shifted its case from redundancy to temporary termination, discrimination and terminal dues in submissions

Reasoning

In submissions filed 3rd February 2021 the Claimant raised discrimination against 14 employees and appeared to shift focus from redundancy to temporary termination and agreement on terminal dues. The court treated the pleadings as revealing convoluted issues of fact ascertainable only through oral evidence, which the Claimant did not adduce.

p. 2

Legal principles established

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  • A party that relies on written submissions without calling evidence fails to discharge its evidential burden where the defence contests the facts

Court orders

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  1. 1.The Claimant's claim is dismissed
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Not stated in the judgment text (Employment and Labour Relations Court, first-instance claim under the Employment Act and a Collective Bargaining 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, "Amalgamated Union of Kenya Metal Workers v Reliable Electrical Engineers (M) Limited [2021] KEELRC 1978 (KLR)", Case Analysis (2021). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1978/eng@2021-03-18

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