Kenya Union of Sugar Plantation & Allied Workers v Kibos Sugar & Allied Industries Limited (Employment and Labour Relations Cause 23 of 2020) [2023] KEELRC 1215 (KLR)
The bottom line
#Kibos Sugar won on most claims, but must pay six suspended workers their half-salary because the company breached the collective bargaining agreement during suspension.
What this practically means
#Executive summary
#Key legal issues
#Competency of the Memorandum of Claim
The Cause was regular because the requisite fees were paid, though the earlier Motion lacked a supporting Statement of Claim.
The Motion preceded the Memorandum of Claim, but since filing fees for the Claim were paid, the Court held the Cause regular. However, it flagged that the interlocutory orders obtained from the Motion, which was not anchored on a Statement of Claim, were irregular and void.
Whether the Grievants were union officials
Four of the six Grievants were officials of the Kibos branch, having been elected in 2016 and registered by the Registrar of Trade Unions.
The Union produced a Notice of Change of Officials and the Registrar of Trade Unions had notified registration of the branch officials on January 25, 2016. On that evidence the Court found the Grievants, save for Benard Otieno Owuor and Elly Onyango Odero, were branch officials.
Lawfulness of the suspensions
The suspensions were lawful under clause 10 of the CBA; the only breach was non-payment of half-pay during suspension.
The notices contemplated suspension of not more than 21 days on half-pay for investigations. The Respondent revoked the suspensions and notified the Union's branch office, which acknowledged the letters; one Grievant resumed work. The recognition agreement had no clause dictating the manner of investigation, and the Union did not demonstrate breach of the CBA clause save for half-pay.
Effect of the conservatory orders of February 27, 2020
The Motion and the orders issued from it were void because they were not anchored on a Statement of Claim.
In preparing the judgment the Court noted the Motion of February 27, 2020 predated the Memorandum of Claim and had no supporting Statement of Claim, rendering it incurably defective and the orders issued in vacuo. The Court therefore held the Cause's merits should not turn on alleged violation of those orders.
Discrimination and unfair termination
Both heads were rejected because they were not pleaded.
Discrimination surfaced only in submissions and unfair termination was never introduced by amendment. The Court held it cannot adjudicate unpleaded claims, tying its hands on both issues despite the Union's arguments.
Legal principles established
#- A party in breach of a CBA clause on suspension is liable for the contractual entitlements arising during the suspension, here half-pay.
- Interim conservatory orders issued on a Motion not anchored on a Statement of Claim are incurably defective and void.
- A court cannot adjudicate claims that were never pleaded, even if raised in submissions.
Court orders
#- 1.The Respondent to compute and pay the Grievants the half-salary they were entitled to during suspension
- 2.No order on costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (constitutional/statutory basis not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Sugar Plantation & Allied Workers v Kibos Sugar & Allied Industries Limited (Employment and Labour Relations Cause 23 of 2020) [2023] KEELRC 1215 (KLR)", Case Analysis (2023). Not stated in judgment (Cause between the Union and Kibos Sugar & Allied Industries Ltd). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1215/eng@2023-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.