[2020] KEELRC 980 (KLR)
The court found that the Conciliator's second report failed to comply with the specific orders previously issued, particularly the requirement to attach minutes of the conciliation proceedings and provide a reasoned analysis of the issues, facts, and recommendations. The report's recommendations were unsupported by...
Source-derived case information.
- Citation
- [2020] KEELRC 980 (KLR)
- Parties
- Claimant: Benson Amwoga Juma; Respondent: Kenya Pipeline Company Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 80 of 2017
- Procedural Posture
- Employment Cause / Interlocutory Ruling on Conciliation and Pretrial Directions
- Outcome
- Conciliation process failed; proceedings to continue to full trial; files consolidated.
- Judges
- J Rika
- Legal Topics
- Conciliation Procedure, Unfair Termination, Collective Bargaining Agreements, Judicial Review of Conciliation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Amwoga Juma
Claimant
Kenya Pipeline Company Limited
Respondent
Procedural Posture
Employment Cause / Interlocutory Ruling on Conciliation and Pretrial Directions
Legal Issues
- 1 Whether the conciliation process was properly conducted in accordance with the court's directions and the law.
- 2 Whether the Conciliator's report could form the basis of a judicial determination.
- 3 Whether the proceedings should be stayed further or the matter should proceed to full trial.
Ratio Decidendi
The court found that the Conciliator's second report failed to comply with the specific orders previously issued, particularly the requirement to attach minutes of the conciliation proceedings and provide a reasoned analysis of the issues, facts, and recommendations. The report's recommendations were unsupported by evidence and included reliefs not grounded in law or fact. As such, the report could not form the basis of a judicial determination. The court determined that it would not be in the interest of justice to refer the matter back to the Conciliator for a third time. Consequently, the court set aside the orders staying proceedings, declared the conciliation process failed, and...
Court Disposition
Conciliation process failed; proceedings to continue to full trial; files consolidated.
Orders
- Orders staying proceedings of the court are set aside.
- The conciliation process has failed.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MOMBASA
CAUSE NUMBER 80 OF 2017
BETWEEN
BENSON AMWOGA JUMA.............................................................CLAIMANT
VERSUS
KENYA PIPELINE COMPANY LIMITED................................RESPONDENT
Rika J
Court Assistant: Benjamin Kombe
____________________________
Cootow & Associates, Advocates for the Claimant
Robson Harris & Company, Advocates for the Respondent
_______________________________________________
RULING
1. On 1st December 2017, the Court made a Ruling staying its proceedings, and referring the dispute to conciliation under the Labour Office, on the ground that the dispute had initially been reported to that Office by the Claimant’s Trade Union, and conciliation process had not been exhausted. The Conciliator filed a Report, recommending reinstatement of the Claimant, by his former Employer, the Respondent herein.
2. The Court found that the Conciliator excluded the Respondent from the process without sound reasons, and rejected the initial Report dated 20th September 2018. In a second Ruling made on 26th July 2019, the Court referred the Parties back to the Conciliator, with specific orders, that among others, the Conciliator: files a Report, accompanied by the record or evidence of the minutes of the conciliation meeting[s]; an analyses of issues in dispute; the facts; recommendations; and reasons for recommendations.
3. There are 5 other Grievants, who were dismissed by the Respondent in similar circumstances as the Claimant herein, and whose Claims were to be settled based on the outcome of the Claim herein.
4. The Court therefore needed the assistance of the Conciliator, in terms laid out at paragraph 2 of this Ruling, in order to determine all the related Claims.
5. The Conciliator filed a second Report on 9th December 2019. It does not comply with the Ruling made on26th July 2019, in particular order [c] of the Ruling. Rule 5[1] [b] of the Employment & Labour Relations Court [Procedure] Rules 2016, requires the Conciliator to attach minutes of the conciliation proceedings, to his Report. There is a reason for this. It enables the Court to have an overview of the conciliation proceedings, and follow the Conciliator’s reasoning leading to recommendations. A bare Report is akin to a Judgment of a Subordinate Court without the proceedings, in a Record of Appeal filed before a Superior Court. In the Ruling of 26th July 2019, the Court made specific orders which the Conciliator disregarded. This prompted the Respondent to file an Application dated 5th March 2020, asking the Court to disregard Conciliator’s Report, and proceed with the trial.
6. Recommendations in the Report are: maximum compensation for unfair termination; terminal benefits that accrues in the Parties’ CBA; pain and loss incurred in pursuit of this matter; and any other relief the Court may find fit to grant.
7. The recommendations are not supported by evidence, and some of them, like pain and loss incurred in pursuit of this matter, appear unconventional and without support in fact and law.
8. The Report cannot form the basis of a judicial determination, having failed to comply with specific terms of reference. The Conciliator was not helpful to the Court. It would not be in the interest of justice, to send the Parties back to the Conciliator for a third time.
9. Lastly, the Court must record that it has been compelled to release this Ruling from the confines of the Trial Judge’s home at Chaka, Nyeri County, owing to the prevailing covid-19 pandemic. It is not possible to deliver the Ruling in Open Court without risking lives. Other possible modes of delivery are neither failsafe, nor safe to the participants, particularly at the place of trial Mombasa, which is a hotbed of the pandemic. The much touted online platforms are a fertile seedbed for hackers and communication constantly breaks down. Lives must be protected, but the wheels of justice must keep rolling too. Whereas Rule 28 of the Court Procedure Rules demands decisions of the Court are delivered in Open Court, the presumption in the Rule is that this happens in normal times. These are not normal times. The Court must invoke Rule 38 of its Rules and release the Ruling to the Parties in this unconventional way. It is noted also that the Hon. the Chief Justice has directed that pending decisions are released to the Parties by 30th of May 2020. Parties shall access the Ruling from the Court Registry and Kenya Law Reports web portal, as soon as practicable.
IT IS ORDERED:-
a. Orders staying proceedings of the Court are set aside.
b. The conciliation process has failed.
c. The Claim to proceed to full trial before the Court.
d. Parties to take pretrial directions.
e. The relevant files, Cause Nos. 80 to 85 of 2017, are consolidated, to be heard and determined under Cause No. 80 of 2017.
f. Costs in the Cause.
Dated, signed and released at Chaka, Nyeri County, for dispersal to the Parties, this 29th day of May 2020.
James Rika
Judge