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ELRCPartially AllowedNot stated in judgment (Cause between the Union and Kibos Sugar & Allied Industries Ltd)· [2023] KEELRC 1215 (KLR)

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)

Employment and Labour Relations Court
24 May 2023
1,579 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Kenya Union of Sugar Plantation & Allied Workers sued Kibos Sugar & Allied Industries Ltd on behalf of six Grievants suspended on or around February 20, 2020 to facilitate investigations into misconduct, the suspensions being limited to 21 days on half-pay under clause 10 of the CBA. The Union first moved the Court on February 27, 2020 by Motion, obtaining ex-parte conservatory orders lifting the suspensions, before filing a Memorandum of Claim on March 12, 2020. The Respondent asserted it revoked the suspensions by letters of February 25/29, 2020, served through the Union's branch office, and that one Grievant resumed work. The Union alleged the suspensions were unlawful, that CBA and recognition agreement dispute-resolution procedures were not exhausted, discrimination in reinstating only one Grievant, and disobedience of court orders. The Court found the Cause regular, held four of the six Grievants were branch officials, and found the suspensions lawful, the only breach being non-payment of half-pay during suspension. It declared the February 27, 2020 conservatory orders void because the Motion was not anchored on a Statement of Claim, and declined to adjudicate discrimination and unfair termination as unpleaded claims. The Court ordered the Respondent to compute and pay the Grievants their half-salary for the suspension period, with no order on costs as the parties were social partners.

Key legal issues

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01

Competency of the Memorandum of Claim

Holding

The Cause was regular because the requisite fees were paid, though the earlier Motion lacked a supporting Statement of Claim.

Reasoning

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.

p. 2
02

Whether the Grievants were union officials

Holding

Four of the six Grievants were officials of the Kibos branch, having been elected in 2016 and registered by the Registrar of Trade Unions.

Reasoning

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.

p. 2
03

Lawfulness of the suspensions

Holding

The suspensions were lawful under clause 10 of the CBA; the only breach was non-payment of half-pay during suspension.

Reasoning

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.

p. 4
04

Effect of the conservatory orders of February 27, 2020

Holding

The Motion and the orders issued from it were void because they were not anchored on a Statement of Claim.

Reasoning

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.

p. 4
05

Discrimination and unfair termination

Holding

Both heads were rejected because they were not pleaded.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Respondent to compute and pay the Grievants the half-salary they were entitled to during suspension
  2. 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

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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 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.