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ELRCOtherNot stated in excerpt (claim dated 21st September, 2023)

Kenya Shoe & Leather Workers Union v Technoplast Ltd (Cause E781 of 2023) [2024] KEELRC 1785 (KLR)

Employment and Labour Relations Court
10 July 2024
JGJacob Gakeri
2,308 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out a union's redundancy suit because it rushed to court before completing mandatory conciliation.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection to a suit filed by a trade union on 21st September 2023 (filed 5th October 2023) challenging the redundancy of 72 employees, arguing the court lacked jurisdiction because the Claimant had not pursued conciliation as required by Section 69 of the Labour Relations Act, 2007 and Rule 5 of the ELRC (Procedure) Rules, 2016. Applying Mukisa Biscuits, Gakeri J found the objection competent as it raised pure points of law on statutory compliance. The court held that its jurisdiction derives from Article 162(2)(a) of the Constitution and Section 12(1) of the ELRC Act, and that non-compliance with the Labour Relations Act or the Rules does not oust that jurisdiction - the employer/employee dispute was squarely within its mandate. However, the Claimant had reported the dispute under Section 62, a conciliator (Joyce Kanyiva) was appointed and a meeting scheduled for 4th October 2023, yet the suit was filed a day after that meeting without any conciliation having occurred, without the mandatory Rule 5(3) affidavit explaining the absence of conciliation, without a Section 69 conciliation certificate, and without proof that 30 days had lapsed. Although the Claimant complied with Section 74 (urgent reference for redundancy), this did not cure the mandatory Rule 5 breach. Conciliation, anchored on Article 159(2)(c), is a binding dispute resolution mechanism, not a stepping stone to court. The suit was struck out with no orders 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 Respondent's Notice of Preliminary Objection is merited

Key legal issues

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01

Whether the notice raises a competent preliminary objection

Holding

Yes - it is a point of law on statutory compliance, facts not in dispute.

Reasoning

Applying Mukisa Biscuits, the court found the objection attacked pure questions of law (compliance with Section 69 and Rule 5) on assumed facts, since the Claimant provided no evidence of compliance, and was therefore competent.

p. 3
02

Whether the court has jurisdiction over the suit

Holding

Yes - the dispute concerns an employer/employee relationship within Article 162(2)(a) and Section 12(1) ELRC Act; alleged non-compliance does not oust jurisdiction.

Reasoning

The court held its jurisdiction derives from Article 162(2)(a) and Section 12(1) of the ELRC Act; failure to comply with the Labour Relations Act or the Rules does not automatically oust jurisdiction but must be assessed for impact. The redundancy dispute plainly fell within the court's jurisdiction.

p. 3
03

Whether the suit was prematurely and incompetently instituted

Holding

Yes - the Claimant filed suit before conciliation commenced, without the Rule 5(3) affidavit, conciliation certificate under Section 69, or proof that 30 days had lapsed.

Reasoning

The Claimant reported the dispute under Section 62, a conciliator was appointed and a meeting scheduled for 4th October 2023, but the suit was filed on 5th October 2023 with no conciliation report, certificate or explanatory affidavit. Section 74 compliance did not cure the mandatory Rule 5 breach, rendering the suit incompetent.

p. 5

Legal principles established

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  • Non-compliance with the Labour Relations Act and ELRC Procedure Rules does not, of itself, oust the ELRC's jurisdiction; the court must assess the impact of the non-compliance.
  • A party who invokes conciliation must pursue it to conclusion or justify abandoning it; conciliation is not a stepping stone to court.
  • Rule 5(3) of the ELRC (Procedure) Rules, 2016 mandatorily requires an affidavit explaining why conciliation has not taken place where none has occurred.

Court orders

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  1. 1.The Claimant's suit dated 21st September, 2023 and filed on 5th October, 2023 is struck out
  2. 2.No orders as to costs

The bench

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

JG
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(a) of the Constitution read with Section 12(1) of the Employment and Labour Relations Court Act, 2011

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.

the Claimant's union suit dated 21st September, 2023 and filed on 5th October, 2023 is for striking out and it is accordingly struck out with no orders as to costs.
p. 5Final orders - striking out
Since the suit involves an employer/employee relationship, the court has jurisdiction to hear and determine it, the efiect of the alleged non-compliances notwithstanding.
p. 3Jurisdiction
Non-adjudicatory mechanisms are anchored on Article 159(2)(c) of the Constitution of Kenya. They must be taken as binding and efiective dispute resolution mechanisms, not merely a stepping stones to the judicial forum.
p. 4Conciliation as binding ADR

Issues in the judgment

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minor

Conciliator named inconsistently - 'Joyce Kimulu' in submissions but 'Joyce Kanyiva' in the court's findings

minor

Outcome classified as striking out under a preliminary objection, yet the court simultaneously affirms jurisdiction - the suit was struck out for procedural non-compliance, not want of jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Shoe & Leather Workers Union v Technoplast Ltd (Cause E781 of 2023) [2024] KEELRC 1785 (KLR)", Case Analysis (2024). Not stated in excerpt (claim dated 21st September, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1785/eng@2024-07-10

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