[2018] KEELRC 1509 (KLR)
The court held that it lacked jurisdiction to hear the matter because the claimant had not complied with the mandatory statutory requirement to refer the dispute to the Minister for conciliation under Part VIII of the Labour Relations Act. The court emphasized that statutory procedures for dispute resolution,...
Source-derived case information.
- Citation
- [2018] KEELRC 1509 (KLR)
- Parties
- Applicant: Kenya Hotels and Allied Workers Union; Respondent: Southern Sun Mayfair
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 585 of 2011
- Procedural Posture
- Cause / Judgment
- Outcome
- Jurisdiction declined; matter to be referred for conciliation.
- Judges
- NJ Abuodha
- Legal Topics
- Trade Union Recognition, Collective Bargaining, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Hotels and Allied Workers Union
Applicant
Southern Sun Mayfair
Respondent
Procedural Posture
Cause / Judgment
Legal Issues
- 1 Whether the court has jurisdiction to hear the dispute before the claimant complies with statutory conciliation procedures.
- 2 Whether the claimant was required to refer the dispute to the Minister for conciliation before filing the claim.
Ratio Decidendi
The court held that it lacked jurisdiction to hear the matter because the claimant had not complied with the mandatory statutory requirement to refer the dispute to the Minister for conciliation under Part VIII of the Labour Relations Act. The court emphasized that statutory procedures for dispute resolution, particularly those involving trade union recognition and collective bargaining, must be strictly followed. Since the claim was filed as an ordinary claim without evidence of conciliation, the court declined jurisdiction and directed that the dispute be reported to the Minister for conciliation as required by law.
Court Disposition
Jurisdiction declined; matter to be referred for conciliation.
Orders
- The court declines jurisdiction over the claim.
- The dispute is to be reported to the Minister for conciliation in accordance with Part VIII of the Labour Relations Act.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 585 OF 2011
KENYA HOTELS AND ALLIED WORKERS UNION ..........CLAIMANT
VERSUS
SOUTHERN SUN MAYFAIR.................................................RESPONDENT
JUDGMENT
1. The respondent in this matter has raised a fundamental issue which must be addressed by the claimant before the court can be seized of jurisdiction to hear the matter.
2. Part VII of the Labour Relations Act deal with recognition of trade unions and collective agreements. Section 54(6) provides as follows:
“If there is a dispute as to the right of a trade union to be recognized for the purposes of collective bargaining in accordance with this section or cancellation of a recognition agreement, the trade union may refer the dispute for conciliation in accordance with provisions of Part VIII”.
3. Part VIII of the Act at Section 62(1) provides that a trade dispute may be reported to the Minister who shall within twenty one days of the trade dispute being reported appoint a conciliator to attempt to resolve the trade dispute. Section 72(1) of the Act provides that if a trade dispute is not resolved after conciliation, a party to the dispute may refer it to the Industrial Court in accordance with the rules of the Court.
4. Section 74 of the Act however permits referral to the court of a dispute as a matter of urgency if the dispute concerns recognition of a trade union. This claim was filed as an ordinary claim without any evidence of conciliation as required by part VIII of the Act.
5. Where the law requires that a particular step be taken before invoking jurisdiction of the court, that step must be taken first before the court can become seized of the matter.
6. The court will in the circumstances decline jurisdiction and direct that the dispute be reported to the Minister for conciliation in accordance with Part VIII of the Labour Relations Act.
7. It is so ordered.
Dated at Nairobi this 13th day of July, 2018
Abuodha Jorum Nelson
Judge
Delivered this 13th day of July, 2018
Abuodha Jorum Nelson
Judge
In the presence of:-
...................................for the Claimant and
...................................for the Respondent.