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ELRCPartially AllowedNot stated in judgment (application dated 20th January, 2020)

Kenya Plantation & Agricultural Workers Union v Kongoni River Farm (Star Division) [2020] KEELRC 1108 (KLR)

Employment and Labour Relations Court
11 May 2020
1,240 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court reinstated a dismissed employment case but struck out settlement documents because 'without prejudice' talks can't be used in court if no deal was reached.

What this practically means

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Executive summary

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The claimant, Cliffton Saya, applied by notice of motion dated 20th January, 2020 seeking to set aside and vacate the court's directions dismissing the suit, and to have the matter reinstated for hearing on the merits. The claimant explained that on 3rd December, 2019 the court, at a mention taken by consent while parties pursued out-of-court settlement, directed the parties to file a consent by 2nd January, 2020 failing which the suit would stand dismissed and the file closed. The respondent did not furnish its settlement proposal, no consent was filed, and the suit lapsed. The respondent, through the affidavit of its advocate Delbert Ochola, opposed the application, arguing among other things that the claimant had improperly relied on documents exchanged without prejudice, and that the application was filed with delay. The court first addressed the without prejudice issue, holding that communications exchanged in settlement negotiations remain protected and inadmissible unless a binding agreement arose out of them, and expunged all the without prejudice annexures to the claimant's affidavit. On reinstatement, the court noted the claimant's repeated efforts to have the suit heard, the seriousness of the allegations concerning violations of sections 20 and 21 of the Employment Act, 2007, and the desirability of developing employment and labour jurisprudence on the merits. The court allowed the application, re-opened the file, reinstated the suit, and conditioned the claimant to set the matter down for hearing within 14 days, failing which the respondent could seek dismissal. Costs were awarded in the cause. The judgment was delivered electronically on 11th May, 2020 in line with COVID-19 court operation directives.

Questions the Court framed

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

  1. 1.Whether without prejudice documents exchanged during settlement negotiations are properly on record and admissible
  2. 2.Whether there is good cause to re-open the file and reinstate the suit dismissed on 2nd January, 2020 pursuant to the court's directions of 3rd December, 2019

Key legal issues

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01

Admissibility of without prejudice materials

Holding

The without prejudice annexures to the claimant's affidavit were improperly filed and are expunged

Reasoning

The court reasoned that documents exchanged in settlement negotiations remain without prejudice and cannot be used outside those negotiations. Such communications become admissible only where a binding agreement resulted from the negotiations or to show that negotiations occurred. Since the parties' negotiations did not result in an agreement, the records were improperly before the court and were struck out.

p. 2
02

Whether the suit should be reinstated

Holding

The application was allowed; the file was re-opened and the suit reinstated on condition the claimant set it down for hearing within 14 days

Reasoning

The court weighed the claimant's repeated efforts to have the suit heard against various lapses, the age of the file and the consent directions of 3rd December, 2019. The allegations - violations of sections 20 and 21 of the Employment Act - were serious and merited determination on the merits, which would develop employment and labour law. Reinstatement was granted subject to a 14-day condition.

p. 2

Legal principles established

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  • The without prejudice rule, founded on public policy, protects statements made in settlement negotiations from being relied upon in court if negotiations fail
  • Without prejudice communications are admissible only where a binding agreement arose out of them or to show that negotiations took place

Court orders

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  1. 1.All annexures to the affidavit of Cliffton Saya dated 20th January, 2020 marked 'without prejudice' are expunged and not to be used in the proceedings
  2. 2.The file is re-opened
  3. 3.The suit dismissed on 2nd January, 2020 is reinstated
  4. 4.The claimant has 14 days to move the court and have the matter heard, failing which the respondent may move the court for dismissal of the suit
  5. 5.Costs in the cause

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Not expressly stated; Employment and Labour Relations Court jurisdiction over a claim alleging violation of sections 20 and 21 of the Employment Act, 2007

Relief refused

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Reliance on without prejudice annexures/records of settlement negotiations

The without prejudice communications did not result in a binding agreement and are therefore inadmissible and improperly on record

p. 2

Costs

Costs in the cause

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.

Accordingly, application dated 20th January, 2020 is hereby allowed and the following orders are issued; (a) The file is re-opened; (b) The suit dismissed on 2nd January, 2020 is hereby reinstated;
p. 2final orders - reinstatement
the file shall be re-opened and the suit reinstated save on condition the claimant shall commence the process of having the claim heard within the next 14 days and failure to which the respondent shall be at liberty to move the court for the dismissal of the suit.
p. 2conditional reinstatement
All the annexures to the affidavit of Cliffton Saya dated 20th January, 2020 and marked ‘without prejudice’ are hereby expunged.
p. 2without prejudice materials expunged
The rationale is that the offer made on a without prejudice basis is not an agreement capable of being enforced.
p. 1without prejudice rule

Issues in the judgment

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minor

The application is referred to as dated 20th January, 2010 at the start and 20th January, 2020 later in the judgment, an apparent typographical inconsistency

minor

The case number of the suit itself is not stated anywhere 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 Plantation & Agricultural Workers Union v Kongoni River Farm (Star Division) [2020] KEELRC 1108 (KLR)", Case Analysis (2020). Not stated in judgment (application dated 20th January, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1108/eng@2020-05-11

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