[2021] KEELRC 1876 (KLR)
The Court found that the Respondent failed to provide sufficient evidence that the Claimant was a party to the other suits filed by the Kenya Plantation & Agricultural Workers Union, as the Respondent did not file the appendix listing the Union members in Kericho Cause No. 72 of 2018 despite court orders....
Source-derived case information.
- Citation
- [2021] KEELRC 1876 (KLR)
- Parties
- Claimant: Dorcas Wairimu; Respondent: Eastern Produce Kenya Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 206 of 2017
- Procedural Posture
- Motion / Ruling on Application to Transfer Suit and for Costs
- Outcome
- application dismissed with costs to the claimant
- Legal Topics
- Transfer of Suit, Union Representation, Employment Termination, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dorcas Wairimu
Claimant
Eastern Produce Kenya Ltd
Respondent
Procedural Posture
Motion / Ruling on Application to Transfer Suit and for Costs
Legal Issues
- 1 Whether the suit should be transferred to the Employment and Labour Relations Court at Kericho for hearing and determination.
- 2 Whether the Claimant was a party to other suits filed by the Kenya Plantation & Agricultural Workers Union regarding the same termination.
- 3 Whether the Claimant should bear the costs of the application.
Ratio Decidendi
The Court found that the Respondent failed to provide sufficient evidence that the Claimant was a party to the other suits filed by the Kenya Plantation & Agricultural Workers Union, as the Respondent did not file the appendix listing the Union members in Kericho Cause No. 72 of 2018 despite court orders. Furthermore, the timing of the other suits did not coincide with the termination of the Claimant's employment, and the Claimant denied being a Union member or authorizing any such suit. As a result, the Court held that the Respondent had not met the threshold for transfer of the suit or for an award of costs against the Claimant. The application was dismissed with costs to the Claimant.
Court Disposition
application dismissed with costs to the claimant
Orders
- The Respondent's Motion dated 24 October 2018 is dismissed with costs to the Claimant.
- The Claimant to file and serve any further documents and witness statements on or before 21 April 2021.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
CAUSE NO. 206 OF 2017
DORCAS WAIRIMU....................................................CLAIMANT
VERSUS
EASTERN PRODUCE KENYA LTD.....................RESPONDENT
RULING
1. For determination is a Motion dated 24 October 2018 by Eastern Produce Kenya Ltd (Siret Estate)(the Respondent) seeking orders:
1. …
2. THAT the suit be transferred to the Employment and Labour Relations Court at Kericho for hearing and determination.
3. THAT the Claimant bears the cost of this application.
2. The grounds in support of the Motion were that the Kenya Plantation & Agriculture Workers Union had filed another Cause wherein the fairness of the termination of the Claimant’s employment had been raised (see Kericho Cause No. 170 of 2016, Kenya Plantation & Agricultural Workers Union v Eastern Produce Kenya Ltd); that the Cause had been marked as settled by consent on 5 June 2018, and that the Union had filed another Cause on behalf of its members including the Claimant raising the same issues (see Kericho Cause No. 72 of 2018, Kenya Plantation & Agricultural Workers Union v Eastern Produce Kenya Ltd).
3. The Claimant filed a replying affidavit in opposition to the Motion on 27 November 2018.
4. In the affidavit, the Claimant deposed that she had not filed any other suit challenging the termination of her contract on 7 December 2016, nor had she given instructions to the Kenya Plantation & Agricultural Workers Union to file such a suit(s).
5. The Claimant also deposed that the instant suit was filed before the Union filed Kericho Cause No. 72 of 2018, Kenya Plantation & Agricultural Workers Union v Eastern Produce Kenya Ltd, and that by the time Kericho Cause No. 170 of 2016, Kenya Plantation & Agricultural Workers Union v Eastern Produce Kenya Ltd was being filed, her contract had not been terminated.
6. The Claimant further deposed that she had never been a member of the Kenya Plantation & Agricultural Workers Union.
7. Pursuant to directions by the Court on 19 January 2021, the Claimant filed her submissions on 19 March 2021. The Court directed the Respondent to file and serve its submissions together with all the pleadings in Kericho Cause No. 72 of 2018, Kenya Plantation & Agricultural Workers Union v Eastern Produce Kenya Ltd.
8. The Respondent’s submissions and pleadings in Kericho Cause No. 72 of 2018,Kenya Plantation & Agricultural Workers Union v Eastern Produce Kenya Ltd, were not on record by the agreed timeline of 19 February 2021.
9. The Court has considered the Motion, affidavits and submissions on record and come to the view that the Motion lacks merit.
10. Although the Respondent had annexed a copy of the Statement of Claim in Kericho Cause No. 72 of 2016, Kenya Plantation & Agricultural Workers Union v Eastern Produce Kenya Ltd, it did not, despite Court orders on 19 January 2021, file a copy of the Appendix to the Statement of Claim which listed the members of the Union on whose behalf the Cause been presented.
11. Therefore, the Court is unable to determine whether the Claimant was part of the parties in the cause of action advanced by the Union in Kericho Cause No. 72 of 2016, Kenya Plantation & Agricultural Workers Union v Eastern Produce Kenya Ltd.
12. The Respondent also made reference to Kericho Cause No. 170 of 2016,Kenya Plantation & Agricultural Workers Union v Eastern Produce Kenya Ltd.
13. Although the pleadings in this Cause were not filed, there is no doubt in the mind of the Court that the suit could not have been in relation to the termination of the Claimant’s employment on 7 December 2017, over a year later.
14. In light of the foregoing, the Court finds the Motion without merit, and it is dismissed with costs to the Claimant.
15. In order to progress this Cause to hearing, the Court orders as follows:
(i) The Claimant to file and serve any further documents and witness statements on or before 21 April 2021.
(ii) The Respondent files and serves any further documents and witness statements before 28 April 2021.
(iii) Agreed Issues to be filed on or before 12 May 2021.
(iv) In default of Agreed Issues, the Claimant to file and serve its proposed Issues with evidence that the same was served upon the Respondent, for adoption by the Court.
(v) Hearing date to be scheduled after the filing of Agreed Issues.
Delivered through Microsoft teams, dated and signed in Nairobi on this 14th day of April 2021.
Radido Stephen, MCIArb
Judge
Appearances
For Claimant Mwakio Kirwa & Co. Advocates
For Respondent Kaplan & Stratton Advocates
Court Assistant Chrispo Aura