[2018] KEELRC 580 (KLR)
The court found that there is no company known as Rizwan Metal Craft Limited, and therefore, no orders—interim or substantive—can be issued against a nonentity. Even if a proper respondent existed, the claim was premature as the claimant had not exhausted the mandatory conciliation process under the Labour Relations...
Source-derived case information.
- Citation
- [2018] KEELRC 580 (KLR)
- Parties
- Applicant: Amalgamated Union of Kenya Metal Workers; Respondent: M/S Rizwan Metal Craft Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 469 of 2018
- Procedural Posture
- Labour Cause / Ruling on Preliminary Objection and Interlocutory Application
- Outcome
- claim struck out on preliminary objection for want of jurisdiction and procedural impropriety
- Judges
- J Rika
- Legal Topics
- Trade Union Recognition, Conciliation Procedure, Preliminary Objection, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amalgamated Union of Kenya Metal Workers
Applicant
M/S Rizwan Metal Craft Limited
Respondent
Procedural Posture
Labour Cause / Ruling on Preliminary Objection and Interlocutory Application
Legal Issues
- 1 Whether the respondent is a legal entity capable of being sued in this matter.
- 2 Whether the claim is premature for failure to exhaust statutory conciliation procedures under the Labour Relations Act.
- 3 Whether the court has jurisdiction to entertain the claim before issuance of a certificate of unresolved dispute by the conciliator.
Ratio Decidendi
The court found that there is no company known as Rizwan Metal Craft Limited, and therefore, no orders—interim or substantive—can be issued against a nonentity. Even if a proper respondent existed, the claim was premature as the claimant had not exhausted the mandatory conciliation process under the Labour Relations Act. The claimant approached the court before the conciliator had issued a certificate of unresolved dispute, and there was no evidence that conciliation had failed or could not proceed. The absence of a conciliator's report, certificate, or affidavit explaining the failure of conciliation rendered the claim improperly before the court. Consequently, the preliminary objection...
Court Disposition
claim struck out on preliminary objection for want of jurisdiction and procedural impropriety
Orders
- The preliminary objection succeeds.
- The claim is prematurely and improperly before the court.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOURRELATIONS COURT AT MOMBASA
CAUSE NUMBER 469 OF 2018
BETWEEN
AMALGAMATED UNION OF KENYA METAL WORKERS..........CLAIMANT
VERSUS
M/S RIZWAN METAL CRAFT LIMITED.....................................RESPONDENT
RULING
1. The Claimant Union filed its Statement of Claim on 26th July 2018. It seeks to have the Respondent compelled to sign Recognition Agreement with the Claimant; deduct and remit trade union dues; and stopped from victimizing Employees on account of their association with the Claimant Union.
2. Simultaneously, the Claimant filed an Application by way of Notice of Motion, asking the Court to grant orders restraining the Respondent from forcing the Employees to withdraw their membership of the Union, and that the Claim is heard and determined on a priority basis.
3. Interim orders of injunction issued against the Respondent on 26th July 2018, restraining the Respondent from intimidating the Employees on account of their association with the Claimant.
4. The Respondent filed a Replying Affidavit through Riazullhaq Ali Mohamed, who describes himself as the Sole Proprietor of the Respondent business. The Affidavit was sworn on 14th September 2018 and filed the same date. The Respondent also filed a Notice of Preliminary Objection on 8th August 2018. Objection is based on the ground that the Respondent brought before the Court, Rizwan Metal Craft Limited is non-existent; the Application is premature; and the whole Claim is pending conciliation.
5. Parties were heard on 2nd November 2018, the Court having earlier ordered that Preliminary Objection is merged and heard together with, the Notice of Motion.
The Court Finds:-
6. It is clear there is no Company known as Rizwan Metal Craft Limited, capable of being sued. Interim orders, or substantive orders of recognition, cannot be directed against a nonentity.
7. Even if there is a proper Respondent in this Claim, it is clear the Claim is premature. The Claimant Union reported the same dispute to the Cabinet Secretary through a notice dated 2nd July 2018, in accordance with Section 62 of the Labour Relations Act 2007 (the Act).
8. The Chief Industrial Relations Officer appointed Conciliator under Section 65(1) of the Act. Parties were directed to submit in writing, their proposals to the Conciliator. The letter of Chief Industrial Relations Officer accepting the dispute, is dated 17th July 2018.
9. The Claimant approached the Court on 26th July 2018 barely a week after communication from the Labour Office, issued upon the Parties.
10. Parties have not appeared before Conciliator or made their proposals as advised. There is no Certificate issued by the Conciliator under Section 69 of the Act, stating that the dispute has not been resolved, to enable the Court assume jurisdiction.
11. The Claim offends rule 5 of the Employment and Labour Relations Court (Procedure) Rules 2016. There is no Report of the Conciliator, no Certificate of Conciliation or Affidavit sworn by the Claimant, or by the Claimant’s Representative, attesting to the reasons why conciliation has not taken place.
12. Section 48 of the Employment Act is not relevant to this dispute. The Respondent has the liberty to have an Advocate of his choice, in engaging with the Claimant Union on recognition and trade union dues. Section 48 of the Employment Act bars Advocates from participating in proceedings before a Labour Officer, initiated pursuant to complaints made under Section 47 of the Employment Act. These are complaints in the nature of summary dismissal and unfair termination. The Respondent cannot be faulted for seeking legal advice, in and out of Court, on a dispute centred on recognition.
13. The Claimant needs to exhaust conciliation, and know exactly, who to pursue for purposes of recognition. It is futile to seek recognition from a nonentity.
IT IS ORDERED:-
a) The Preliminary Objection succeeds.
b) The Claim is prematurely and improperly before the Court.
c) It is struck out in its entirety.
d) No order on the costs.
e) File is closed.
Dated and delivered at Mombasa this 23rd day of November, 2018.
James Rika
Judge