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ELRCDismissedELRC Appeal (Narok)· [2023] KEELRC 342 (KLR)

Kicheche Camp Limited v Owidi (Appeal E15 of 2022) [2023] KEELRC 342 (KLR)

Employment and Labour Relations Court
9 February 2023
HWHellen Wasilwa
3,395 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that sacked employees can go straight to court instead of following a workplace grievance process.

What this practically means

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Executive summary

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Kicheche Camp Limited appealed against a ruling of the Chief Magistrates Court at Narok (G. N. Wakahiu, CM) delivered on 26th October 2021, dismissing its application dated 28th July 2021 seeking a stay of proceedings and referral of the Respondent's employment claim to the Secretary of the Joint Industrial Council under Clause 13 of the Collective Bargaining Agreement between the Kenya Association of House Keepers and Caterers (KAHC) and KUDHEIHA. The Appellant argued that the trial court sacrificed substantive justice by treating the requested referral as a delay tactic, that the Respondent had failed to exhaust the CBA's ADR mechanism, and that the magistrate relied on irrelevant factors including Order 42 stay-pending-appeal principles. The Respondent countered that the CBA's grievance machinery (Clause 12 and Appendix 5(c)) does not accommodate individual grievances, applies only to employees in active service, and is geographically limited in part to the Coast; further, the Joint Industrial Council had already determined his dues and the Appellant refused to pay, rendering the Council functus officio. Justice Hellen Wasilwa agreed with the trial court. Clause 12 of the CBA applies to employees in active employment, not terminated employees; although the cause of action arose during employment, the Respondent had been terminated on 31st August 2020 before filing suit, leaving no opportunity for ADR referral. Section 15(4) of the ELRC Act, permitting referral to conciliation, mediation or arbitration, is discretionary and not mandatory. The court found the trial magistrate properly exercised his discretion and dismissed the appeal with costs, referring the claim back to the trial magistrate or any other magistrate allocated by the Head of Station.

Key legal issues

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01

Whether the CBA grievance procedure covered the Respondent's individual grievance

Holding

It did not; the mechanism applies to employees in active employment and the Respondent had been terminated before filing suit

Reasoning

Clause 12 of the CBA provides local grievance procedures involving the employee, shop steward, management and dispute committees. The court found the reference to 'employee' necessarily contemplates a person in active employment. The cause of action may have arisen during employment, but by the time suit was filed on 28/6/2021 the Claimant had already been terminated by letter of 31/8/2020, so the ADR avenue was unavailable to him.

p. 7
02

Whether the trial magistrate erred in refusing stay of proceedings

Holding

No error; the discretion was judicially exercised

Reasoning

Stay of proceedings is discretionary. The trial magistrate considered Article 159 of the Constitution, the fact that the CBA did not provide a clear avenue for an individual grievant, and that staying the matter would only delay it. Section 15(4) of the ELRC Act is not mandatory. The appellate court found no basis to fault the exercise of that discretion.

p. 7

Legal principles established

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  • The grievance and ADR machinery in the CBA applies to employees in active employment, not to employees who have been terminated or dismissed
  • Section 15(4) of the ELRC Act, permitting a court to stay proceedings and refer a dispute to ADR, is not mandatory and is a matter of judicial discretion

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.The claim is referred back to be heard by the trial magistrate or any other magistrate allocated by the Head of Station

Authorities

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Legislation

  • Constitution of KenyaArticle 159; Article 159(2)(a)(b)(c)(d)
  • Employment and Labour Relations Court ActSection 15; Section 15(4)
  • Civil Procedure RulesOrder 42
  • Labour Relations Act
  • Collective Bargaining Agreement (KAHC and KUDHEIHA)Clause 12(b); Clause 13; Appendix 5/Section 5(c); Section 12(b)

Cases cited (7)

  • Alex Wainanina t/a John Commercila Agencis v Johnson Mwangi Wanjihia
    [2015] eKLR
  • Nanchang Foreign Engineering Company (K) Ltd v Easy Properties (K) Limited
    [2014] eKLR
  • Speaker of the National Assembly v Njenga Karume
    [1992] KLR 21
  • Kenya Chemical and Allied Workers Union v East African Portland Cement and Company Limited
    [2013] eKLR
  • Kenya National Union of Teachers (KNUT) v Nancy Njeri Macharia & Another
    [2020] eKLR
  • R. v Independent Electoral and Boundaries Commission (I.E.B.C.) & Others Ex Parte The National Super Alliance (NASA) Kenya
  • Ahmednasir Abdikadir & Co Advocates v National Bank Of Kenya Limited
    [2006] eKLR
On appeal from
Chief Magistrates Court at Narok
Narok CMELRC No. 3 of 2021 - Kennedy Owidi v Kicheche Camp Limited
Jurisdiction invoked
Appellate jurisdiction of the ELRC over appeals from the magistrates' courts (Employment and Labour Relations Court Act)

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, "Kicheche Camp Limited v Owidi (Appeal E15 of 2022) [2023] KEELRC 342 (KLR)", Case Analysis (2023). ELRC Appeal (Narok). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/342/eng@2023-02-09

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