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ELRCDismissedNot stated in judgment· [2016] KEELRC 154 (KLR)

Kenya Engineering Workers Union v Devki Steel Mills Limited [2016] KEELRC 154 (KLR)

Industrial Court (Employment and Labour Relations Court)
20 December 2016
MNMATHEWS NDERI NDUMA
1,466 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A union's lock-out claim failed because it named no affected workers and skipped the mandatory conciliation process before going to court.

What this practically means

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Executive summary

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The claimant union filed a memorandum of claim and notice of motion on 9th July 2015 alleging that on 29th June 2015 the respondent locked out its unionisable employees without the seven days' notice required under Section 76 of the Labour Relations Act and without consultation under Clause 26(b) of the parties' CBA. Interim orders reinstating the employees were issued and extended. The respondent denied any lock-out, admitted the recognition agreement but denied a valid CBA, asserted that all employees were at work, and claimed instead that the claimant's Area Secretary and some employees forcibly entered the factory, switched off machines and stopped operations in an unlawful strike. The court framed two issues: whether a lock-out or an unlawful strike occurred, and whether the claimant was entitled to the reliefs sought. The court held that a party must stand or fall on its pleadings. The memorandum of claim named no employees allegedly locked out, attached no list, and disclosed no dispute save bald allegations. Further, under Rule 6 of the Industrial Court (Procedure) Rules 2010 the dispute should first have been reported to the Ministry of Labour for conciliation; the claimant attached neither a reporting letter, a certificate of unresolved dispute, nor an affidavit explaining the omission, rendering the suit incompetent. Omissions could only be cured by amendment, not by witness statement or oral testimony. The suit was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether a lock-out occurred on 29th June 2015

Holding

The claimant failed to prove a lock-out; the memorandum of claim named no employees and disclosed no dispute, so the claim failed on a balance of probability

Reasoning

The claimant's pleadings contained bare allegations without names, work stations or numbers of the affected employees, and no list was attached. The supporting affidavit also omitted the names. The respondent denied any lock-out and asserted attendance at work. Since a party must stand or fall on its pleadings, the court could not grant relief in respect of undisclosed employees.

p. 3
02

Whether the suit was competent for want of prior conciliation

Holding

The suit was incompetent because the dispute was never reported to the Ministry of Labour for conciliation, no certificate of unresolved dispute was attached, and no affidavit explained the omission

Reasoning

Under Rule 6 of the Industrial Court (Procedure) Rules 2010, a labour dispute must first be reported to the Ministry of Labour for conciliation, and if unresolved within 30 days, a certificate issues to allow referral to the court. Alternatively an affidavit must explain non-referral. The claimant attached none of these, rendering the suit incompetent.

p. 3

Legal principles established

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  • A party must stand or fall on its pleadings; omissions in pleadings cannot be cured by witness statements or oral testimony
  • A labour dispute must first be reported to the Ministry of Labour for conciliation, or the suit must be accompanied by an affidavit explaining why it was not, failing which the suit is incompetent

Court orders

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  1. 1.The suit is dismissed for lack of merit
  2. 2.Each party to bear costs of the suit
Jurisdiction invoked
Industrial Court (Procedure) Rules 2010; Labour Relations 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, "Kenya Engineering Workers Union v Devki Steel Mills Limited [2016] KEELRC 154 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/154/eng@2016-12-20

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