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ELRCStruck OutCause (not specified in judgment)

Kenya Building, Construction, Timber & Furniture Industries Employees Union v Sinohydro Tiajin Engineering Company Limited (Cause 1713 of 2016) [2018] KEELRC 1541 (KLR)

Employment and Labour Relations Court
13 July 2018
512 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a union's claim filed before the mandatory conciliation process was complete, warning against short-circuiting it.

What this practically means

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Executive summary

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The Union commenced proceedings against Sinohydro Tianjin Engineering Co. Ltd on 25 August 2016 over the Respondent's refusal to recognise it. The Respondent filed an appearance through Ogola Okello & Co. Advocates but never filed a Response despite a court direction of 17 October 2016, and did not attend the hearing on 21 May 2018. The Cause proceeded on the record and the Union's submissions. The Court examined the statutory conciliation process under Part VIII of the Labour Relations Act. The Union reported the dispute to the Cabinet Secretary, Labour on 23 June 2016, a Conciliator was apparently appointed, and the Union moved the Court before the conciliation process had concluded - the Conciliator's certificate under section 69 was issued only on 26 January 2017, months after filing. The Court held the Union moved the Court prematurely and that parties should not lightly short-circuit conciliation, warranting striking out of the Cause. The Union's further contention that the Respondent harassed and intimidated employees who joined it was found to require evidence, and as none was led orally or by affidavit, no merit was found on that aspect. The Court struck out the Memorandum of Claim with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Union moved the Court prematurely before the conciliation process under Part VIII of the Labour Relations Act had concluded
  2. 2.Whether the Union proved its contention that the Respondent harassed and intimidated employees who had joined it

Key legal issues

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01

Prematurity of the claim - failure to exhaust conciliation

Holding

The Cause was filed prematurely, before the Conciliator issued a certificate under section 69 of the Labour Relations Act, warranting striking out

Reasoning

The Union reported the trade dispute on 23 June 2016 and filed the Memorandum of Claim on 25 August 2016, yet the Conciliator's certificate under section 69 was only issued on 26 January 2017. Part VIII of the Labour Relations Act requires parties to go through conciliation before moving the Court. The Union therefore short-circuited a mandatory statutory process, and prematurity leads to striking out.

p. 2
02

Alleged harassment and intimidation of employees for joining the Union

Holding

No merit found; the Union did not lead any evidence, oral or by affidavit

Reasoning

The Union contended the Respondent harassed and intimidated employees who joined it. The Court held this part of the dispute required evidence. Since the Union led none, orally or through affidavits, the Court found no merit on that aspect of the dispute.

p. 2

Legal principles established

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  • Parties must exhaust the conciliation process under Part VIII of the Labour Relations Act before moving the Court, and premature resort to the Court warrants striking out the cause
  • A party alleging harassment or intimidation must lead evidence to sustain that aspect of a dispute; unproved allegations attract no merit finding

Court orders

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  1. 1.The Memorandum of Claim is struck out

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Part VIII of the Labour Relations Act (trade dispute conciliation mechanism) and the Court's inherent jurisdiction to strike out prematurely instituted causes

Relief refused

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Recognition of the Union by the Respondent

The Cause was struck out because the Union moved the Court prematurely before the conciliation process had ended

p. 2

Relief for alleged harassment and intimidation of employees who joined the Union

The Union led no oral or affidavit evidence to support this contention

p. 2

Costs

Costs to the Respondent (implied by striking out the Cause following the Union's premature filing; no express costs order quoted)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the view of the Court, the prematurity should lead to the striking out of the Cause.
p. 2Consequence of premature filing before conciliation
There are reasons why the law provides for conciliation in disputes such as this one and the partners should not lightly short circuit that conciliation process.
p. 2Importance of the statutory conciliation process
That the Union moved the Court prematurely is therefore obvious.
p. 2Finding of prematurity
because the Union did not lead any evidence orally or through afidavits, the Court finds no merit on that aspect of the dispute.
p. 2Burden of proof on allegations requiring evidence
In light of the above, the Court has no hesitation in concluding that the dispute presented and orders that the Memorandum of Claim herein be struck out with no order as to costs.
p. 2Final orders and disposition

Issues in the judgment

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material

The judgment text as supplied contains garbled/corrupted passages in the concluding paragraphs, obscuring the exact wording of the final orders and the costs order

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 Building, Construction, Timber & Furniture Industries Employees Union v Sinohydro Tiajin Engineering Company Limited (Cause 1713 of 2016) [2018] KEELRC 1541 (KLR)", Case Analysis (2018). Cause (not specified in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1541/eng@2018-07-13

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