[2021] KEELRC 1938 (KLR)
The court held that the Union's failure to call or lead evidence, or to file an affidavit in support of its claim, meant there was no admissible evidence before the court. Pleadings and witness statements not adopted under oath cannot be treated as evidence. Additionally, the Union failed to file a certificate of...
Source-derived case information.
- Citation
- [2021] KEELRC 1938 (KLR)
- Parties
- Applicant: Kenya Tertiary & Schools Workers Union; Respondent: Board of Management, Mbale Secondary School
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 91 of 2018
- Procedural Posture
- Employment Cause / Judgment
- Outcome
- cause dismissed
- Legal Topics
- Trade Union Dues, Trade Union Recognition, Formal Proof Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Tertiary & Schools Workers Union
Applicant
Board of Management, Mbale Secondary School
Respondent
Procedural Posture
Employment Cause / Judgment
Legal Issues
- 1 Whether the respondent unlawfully failed to deduct and remit trade union dues as required.
- 2 Whether the respondent unlawfully failed to recognize the trade union as the representative of its employees.
Ratio Decidendi
The court held that the Union's failure to call or lead evidence, or to file an affidavit in support of its claim, meant there was no admissible evidence before the court. Pleadings and witness statements not adopted under oath cannot be treated as evidence. Additionally, the Union failed to file a certificate of unresolved dispute as required by section 69 of the Labour Relations Act. In the absence of evidence and procedural compliance, the court dismissed the cause.
Court Disposition
cause dismissed
Orders
- The cause is dismissed for lack of evidence.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 91 OF 2018
KENYA TERTIARY & SCHOOLS WORKERS UNION..........................CLAIMANT
V
BOARD OF MANAGEMENT, MBALE SECONDARY SCHOOL.....RESPONDENT
JUDGMENT
1. The Kenya Tertiary & Schools Workers Union (the Union) sued the Board of Management of Mbale Secondary School (the Respondent) on 9 April 2018, and it set out the Issues in Dispute as
i. Deduction of trade union dues.
ii. Recognition of trade union by the employer.
2. Despite the Respondent's Principal receiving and acknowledging service on 13 April 2018, no appearance or Response was filed.
3. On 3 July 2018, the Court directed that the Cause proceeds to formal proof.
4. When the Cause came up for hearing on 8 December 2020, the Union informed the Court that it did not intend to call any witness but would file submissions. The submissions were filed on 19 January 2021.
5. Regrettably, the Court has come to the view that the Cause should be dismissed for lack of evidence. If the Union wanted to proceed without calling or leading evidence, it should have filed an affidavit.
6. Pleadings and witness statements that are not adopted under oath cannot be treated as evidence.
7. The Court also notes that a certificate of unresolved dispute contemplated by section 69 of the Labour Relations Act was not filed.
8. The Cause is dismissed with no order on costs.
DELIVERED THROUGH MICROSOFT TEAMS, DATED AND SIGNED IN KISUMU ON THIS 24TH DAY OF MARCH 2021.
RADIDO STEPHEN, MCIARB
JUDGE
Appearances
For Union Mr Agura, Secretary-General
Court Assistant Chrispo Aura