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ELRCDismissedCause (not stated on record)· [2023] KEELRC 1129 (KLR)

Kenya Engineering Workers Union v Farm Engineering Industries Ltd (Cause E006 of 2020) [2023] KEELRC 1129 (KLR)

Employment and Labour Relations Court
10 May 2023
RSRadido Stephen
1,056 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 dismissed a union's underpayment claim because it relied on pleadings instead of sworn evidence—always bring witnesses or affidavits.

What this practically means

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Executive summary

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The Union and Farm Engineering Industries Ltd concluded a collective bargaining agreement around 28 September 2015, registered on 7 September 2016. On 30 September 2020 the Union referred a dispute alleging violation of clause 2 (Basic Minimum) of the CBA in respect of twelve named Grievants, claiming underpayments from 2015. On the morning of the hearing the Respondent filed a preliminary objection on limitation under section 90 of the Employment Act, 2007 and on the sufficiency of the claim. The hearing was adjourned once, and on 7 March 2023 the Union opted to proceed by way of the record and written submissions without calling any witness; the Respondent also proceeded by submissions. The Court, per Radido Stephen J, held that under sections 107 and 109 of the Evidence Act, and applying CMC Aviation Ltd v Crusair Ltd (No 1) and Karugi & Ar v Kabiya, pleadings are not evidence until proved or admitted, and the burden on a claimant remains constant throughout. The Union having failed to place sworn or affidavit evidence before the Court, its case was not proved to the required standard. On limitation, the Court noted the competing 3-year and 12-month analyses under section 90 but did not make a definitive finding, as the Cause failed on proof. The Court dismissed the Cause and made no order on costs in light of the social partnership between the parties. Judgment was delivered virtually and signed in Kisumu on 10 May 2023.

Key legal issues

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01

Effect of failure to call a witness

Holding

The Union failed to prove its case; pleadings remain mere pleadings without sworn evidence

Reasoning

Under sections 107 and 109 of the Evidence Act, the party asserting facts must prove them. Pleadings are not evidence unless admitted, as held in CMC Aviation Ltd v Crusair Ltd and Karugi & Ar v Kabiya. By opting to proceed by record and submissions without affidavit evidence or a witness, the Union left its averments unproven, and the Court could not found a decision on them.

p. 3
02

Limitation under section 90 of the Employment Act

Holding

The Court analysed but did not conclusively determine limitation, as the claim failed for want of proof

Reasoning

The Court observed that if the 3-year limb of section 90 applies, claims prior to 30 September 2017 are time-barred; if the 12-month continuing-injury limb applies, claims prior to 30 September 2019 would be untenable. Having dismissed the Cause on proof, no definitive limitation holding was made.

p. 3

Legal principles established

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  • Pleadings and submissions are not evidence; a party relying on them must place affidavit or sworn evidence before the Court
  • The burden of proof lies on the party who asserts facts and desires a judgment based on them
  • The burden on a plaintiff to prove his case remains the same throughout the case

Court orders

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  1. 1.The Cause is dismissed
  2. 2.No order on costs
Jurisdiction invoked
First-instance jurisdiction of the Employment and Labour Relations Court over a dispute referred under the Labour Relations Act framework; no specific provision cited

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 Farm Engineering Industries Ltd (Cause E006 of 2020) [2023] KEELRC 1129 (KLR)", Case Analysis (2023). Cause (not stated on record). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1129/eng@2023-05-10

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