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ELRCOtherCause No. 266 of 2018· [2022] KEELRC 688 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Allied Workers (KUDHEIHA Workers) v Kenyatta Secondary School [2022] KEELRC 688 (KLR)

Employment and Labour Relations Court of Kenya
23 February 2022
DNDavid Nderitu
480 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court ruled that disputed facts—like whether a settlement was honoured—must be proven with live evidence, not written submissions.

What this practically means

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Executive summary

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In this Employment and Labour Relations Court cause at Nakuru, the court issued directions rather than a final judgment. The matter, filed on 15th November 2018, concerned a dispute between the claimant union and the respondent school arising from a consent dated 29th March 2017, concluded before filing. When the file came up for delivery of judgment, the court identified two unresolved factual issues: whether the respondent had implemented the consent (which the respondent asserted and the claimant denied), and whether the grievants were members of the claimant union, which bore on the claimant's legal capacity and standing to sue on their behalf. The court held that both questions are matters of fact that cannot be resolved on written submissions from the bar and require viva voce evidence. Observing that the parties' written submissions did not effectively answer the issues, the court suo moto declared its earlier direction of 24/11/2021 (given with the parties' consent) that the matter be disposed of by written submissions to have been an oversight, and set it aside. It directed that the matter proceed to a viva voce hearing with oral and documentary evidence, granted both parties leave within 30 days to amend pleadings and file further documents or statements, and fixed the matter for mention on 16th March 2022 for pre-trial directions. The directions were made pursuant to Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Section 3 of the Employment and Labour Relations Court Act, and Articles 159(2)(a)(b)(d) of the Constitution. No costs order was made and no claim was determined on the merits.

Key legal issues

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01

Whether the dispute over implementation of the consent of 29th March 2017 can be resolved on written submissions

Holding

No; the question whether the consent has been implemented is a matter of fact requiring viva voce evidence

Reasoning

The court found the Respondent pleaded and submitted that it had implemented the consent while the Claimant asserted it had not. The court held such a factual dispute cannot be resolved from the bar on written submissions and must be heard and determined on oral and documentary evidence tendered at a viva voce hearing.

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02

Whether the Claimant has legal capacity and standing to sue for and on behalf of the Grievants

Holding

The issue of standing cannot be determined on the record as there is no evidence the Grievants are members of the Claimant; it must be established by evidence

Reasoning

The Respondent raised the Claimant's legal capacity and standing. The court noted there was no evidence on record showing the Grievants were members of the Claimant, and held this too was a matter of fact that could only be heard, resolved and determined on adduction of evidence at a viva voce hearing.

p. 1
03

Whether the earlier direction of 24/11/2021 for disposal by written submissions should stand

Holding

The direction was set aside suo moto as an oversight, since written submissions had not effectively answered the issues

Reasoning

The court, on reviewing the file in readiness for judgment, found the written submissions did not answer the factual issues. It concluded the earlier consent direction for written-submission disposal was an oversight, set it aside suo moto, and directed the matter proceed to viva voce hearing with leave to amend pleadings.

p. 1

Legal principles established

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  • Disputed issues of fact, such as whether a consent has been implemented or whether grievants are union members, cannot be resolved on written submissions from the bar and must be determined on viva voce evidence

Court orders

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  1. 1.The court order/direction of 24/11/2021 that the matter be disposed of by way of written submissions is set aside
  2. 2.The matter shall proceed by way of viva voce hearing where oral and documentary evidence shall be tendered
  3. 3.Both parties granted leave to amend pleadings and/or file such other documents, statements or pleadings as they may wish within 30 days of the directions
  4. 4.The matter to be mentioned on 16th March 2022 for pre-trial directions

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A
  • Employment and Labour Relations Court Act No. 20 of 2011Section 3
  • Constitution of KenyaArticle 159(2)(a)(b)(d)
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21); Section 3 of the Employment and Labour Relations Court Act No. 20 of 2011; Articles 159(2)(a)(b)(d) of the Constitution

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, Hospitals and Allied Workers (KUDHEIHA Workers) v Kenyatta Secondary School [2022] KEELRC 688 (KLR)", Case Analysis (2022). Cause No. 266 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/688/eng@2022-02-23

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