[2023] KEELRC 891 (KLR)
The court held that the Union failed to prove its case because it did not call any witness or introduce documents into evidence through affidavit or oral testimony. The Memorandum of Claim and attached documents remained mere assertions without evidentiary value. The failure to call the Grievants as witnesses was...
Source-derived case information.
- Citation
- [2023] KEELRC 891 (KLR)
- Parties
- Applicant: Kenya Engineering Workers Union; Respondent: Nyanza Engineering And Hardware Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause E016 of 2022
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- claim dismissed
- Judges
- S Radido
- Legal Topics
- Unfair Dismissal, Burden of Proof, Formal Proof, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Engineering Workers Union
Applicant
Nyanza Engineering And Hardware Ltd
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the dismissal of Joseph Were Owiti and Daniel Odhiambo Ayieko was unfair.
- 2 Whether the Union proved its case in the absence of oral or affidavit evidence.
Ratio Decidendi
The court held that the Union failed to prove its case because it did not call any witness or introduce documents into evidence through affidavit or oral testimony. The Memorandum of Claim and attached documents remained mere assertions without evidentiary value. The failure to call the Grievants as witnesses was unexplained, and no evidence was adduced to support the claims of unfair dismissal. Consequently, the Union did not discharge its burden of proof, and the claim was dismissed.
Court Disposition
claim dismissed
Orders
- The Cause is dismissed with no order on costs.
Full Case Text
Judgment text and source record
26 paragraphs
Kenya Engineering Workers Union v Nyanza Engineering and Hardware Ltd (Cause E016 of 2022) [2023] KEELRC 891 (KLR) (19 April 2023) (Judgment)
Neutral citation: [2023] KEELRC 891 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Kisumu
Cause E016 of 2022
S Radido, J
April 19, 2023
Between
Kenya Engineering Workers Union
Appellant
and
Nyanza Engineering And Hardware Ltd
Respondent
Judgment
1. The Kenya Engineering Workers Union (the Union) sued Nyanza Engineering & Hardware Ltd (the Respondent) alleging that the dismissal of Joseph Were Owiti and Daniel Odhiambo Ayieko (the Grievants) were unfair.
2. Despite being served with Notice of Summons and Memorandum of Claim and acknowledging the service on November 4, 2022, the Respondent did not enter appearance or file a Response.
3. The Court, therefore, directed on January 24, 2023 that the Cause proceeds to formal proof.
4. When the Cause was called for formal proof on February 20, 2023, Mr Araka for the Union informed the Court that he would not call any witness or lead evidence and that he would rely on the record and submissions to be filed.
5. The Union’s submissions were not on record by the agreed timeline of March 17, 2023.
6. The Court has considered the pleadings and and has regrettably come to the view that the Cause must fail.
7. It is not in dispute that the Union filed a Memorandum of Claim together with documents to be relied on.
8. The documents could only be introduced into and as evidence either through an affidavit or vive-voce testimony.
9. The documents were not introduced through an affidavit and the Grievants were not called to testify.
10. The failure to call the Grievants was not explained and the fact remains that the Union did not call evidence in support of the assertions in the Memorandum of Claim, which remained purely assertions. The claims were not proved.
11. The Cause is dismissed with no order on costs.
DELIVERED VIRTUALLY, DATED AND SIGNED IN KISUMU ON THIS 19TH DAY OF APRIL 2023. RADIDO STEPHEN, MCIArbJUDGEAppearancesFor Union Mr Araka, Industrial Relations OfficerRespondent did not participateCourt Assistant Chrispo Aura