Kenya Plantation & Agricultural Workers Union v Sunripe (1976) Limited [2017] KEELRC 980 (KLR)
Full Case Text
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU
CAUSE NO. 573 B OF 2014
KENYA PLANTATION & AGRICULTURAL WORKERS UNION......CLAIMANT
v
SUNRIPE (1976) LIMITED............................................................RESPONDENT
JUDGMENT
1. The Kenya Plantation & Agricultural Workers Union (Union) sued Sunripe (1976) Ltd (Respondent) on 19 November 2014 and the issue in dispute was stated as
Unlawful, illegal and/or unfair dismissal of Joel Maelo Okwayo.
2. The Union sought reinstatement and terminal dues/benefits for the Grievant including gratuity, income during period of dismissal, leave travelling allowance and compensation.
3. In a Statement of Reply filed in Court on 19 December 2014, the Respondent contended that the Grievant was dismissed on account of gross misconduct and denied that the summary dismissal of the Grievant was unfair.
4. On 23 November 2015, the Union filed an Amended Memorandum of Claim and on 18 January 2017, the Court scheduled the Cause for hearing on 23 March 2017. The Union was directed to serve a hearing notice.
5. When the Cause was called out for hearing on 23 March 2017, the Union was represented by its Assistant Secretary General, while the Respondent was not present/represented.
6. On record was an affidavit of service sworn by Hebron Odhiambo Omolo and filed in Court on the same morning attesting to service of a hearing notice. The Respondent had acknowledged the service.
7. The Court being satisfied with service of the hearing notice allowed the hearing to proceed, and Mr. Khisa representing the Union informed the Court that the Union would rely on the record/documents filed and thereafter he made brief oral submissions.
8. The Court reserved judgment to today.
9. Rule 21 of the Employment and Labour Relations Court (Procedure) Rules, 2016 allow the Court to determine a suit on the basis of the pleadings, affidavits, documents filed and submissions made by the parties.
10. What the Court has before it are the pleadings, documents filed and submissions and a verifying affidavit in support of the Memorandum of Claim.
11. There is no affidavit as to the facts and or evidence relied on by the Union/Grievant or the Respondent.
12. Pleadings and/or facts asserted in a pleading need to be supported by testimony presented orally or through an affidavit in proof thereof. This is more so where the pleadings show there are disputed facts, as herein.
13. As it is, the Court has not been provided with evidence either through oral testimony or affidavit to support the Union’s case and therefore, the Court cannot make a determination in favour of the Union/Grievant.
14. The upshot being that the Court dismisses the Cause herein within no order as to costs.
15. Just as a parting shot, Courts and parties ought to tread cautiously when agreeing to the determination of Causes on the basis of pleadings, documents and submissions wherein there appear to be disputed facts and where proper affidavits (and not just witness statements) have not been filed.
16. As was stated by Musinga J (as he was then) in Kenya Breweries Limited vs. Abraham Lain,Kisii HCCA No. 23 of 2003 citing the Court of Appeal decision in Mohamed Musa & Another vs. Peter M Mailanyi & Another, Civil Appeal No. 243 of 1998
Litigants must bear in mind that even in prosecuting casesex parte,the required standards of proof must be observed, particularly where there is denial of material pleadings by any opposing party.
17. The same principle would ring true under the Rules of this Court which envisage simple, quick and non-technical application of rules of engagement in determination of disputes.
18. It would also be prudent for parties seeking to utilise the procedure envisaged under Rule 21 to seek directions of Court under Rule 14(4) and Rule 15(1)(c) for proper affidavits to support the pleadings to be filed.
Delivered, dated and signed in Nakuru on this 14th day of July 2017.
Radido Stephen
Judge
Appearances
For Union Mr. Khisa, Assistant Secretary General
For Respondent in person (did not attend hearing)
Court Assistant Nixon