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Kenya Engineering Workers Union v Mabati Rolling Mills (Cause E062 of 2022) [2023] KEELRC 552 (KLR) (2 March 2023) (Ruling)
Neutral citation:
[2023] KEELRC 552 (KLR)
Republic of Kenya
Cause E062 of 2022
AK Nzei, J
March 2, 2023
Between
Kenya Engineering Workers Union
Claimant
and
Mabati Rolling Mills
Respondent
Ruling
1.Before me is a suit in which suit documents said to have been filed incourt do not bear a court date stamp. The court receipt that may have been issued on payment of court filing fees on filing of the suit is not on record, though court fees is shown to have been assessed at ksh. 2,030, on a date that is not indicated by whoever made that assessment.
2.The assessedcourt filing fees of ksh. 2,030 is shown to have been paid into the court’s account with KCB (Kenya Commercial Bank) at Nairobi on 15/04/2020 at 08.54.14, as the Bank Agent’s deposit slip in that regard is attached to the suit documents in the court’s record. The suit was first registered in this court’s Registry at Nairobi as Cause No. 164 of 2020, and was on July 13, 2020transferred to this court by order of the court sitting at Nairobi (Ocharo Kebira, J).
3.The date on which the court’s filing fees is shown to have been paid by the claimant, which is April 15, 2020, is the date of filing the suit herein. Section 90 of the Employment Act 2007 provides as follows:
4.The respondent is not shown to have entered appearance or filed response to the claimant’s claim pursuant to Rule 13 of the Employment and Labour Relations Court (Procedure) Rules 2016. On October 21, 2022, the respondent filed a Notice of Preliminary Objection stating:-
5.It is pleaded in the claimant’s pleadings (Memorandum of claim dated April 8, 2020) that the impugned redundancy notice took effect on April 14, 2017. According to the claimant, therefore, the cause of action arose on April 14, 2017. According to the respondent, however, the cause of action arose on April 13, 2017. I have looked at the single filed redundancy notice of one Beja Lewa Silale which forms part of the suit documents filed herein, and have noted that the same took effect on April 13, 2017. The claimant’s memorandum of claim dated April 8, 2020and filed in Court on 15th April 2020 indicates that the suit is filed by the Union claimant “on behalf of Wanjala Tiberaus Wamalwa and 41 others.” I have, however, not seen redundancy notices issued by the respondent to the remaining fourty two grievants. The court cannot tell whether or not such notices, if they exist took effect on April 13, 2017, hence making the entire suit statute-barred. The court will have to look into more material before it can decide on the issue of whether or not the suit herein is entirely statute-barred.
6.It was held as follows in the case of Mukisa Biscuits Manufacuring Co Td v West End Distributors Ltd [1969] EA 696
7.Sir Charles Newbold observed as follows in the Mukisa Biscuits case (supra)
8.In the present case, the courtwill have to see all the redundancy notices issued by the respondent to all the grievants, or to the Unionclaimant pursuant to section 40 of the Employment Act, and to ascertain the date of their taking effect, which will be the date on which the cause of action arose regarding individual grievants. There upon, the court will be able to make an informed decision on whether or not the entire suit is entirely statute-barred.
9.Let therespondent file its pleadings, if it wishes to do so, and let the suit be fast tracked for hearing without undue delay.
10.It is my finding that the preliminary objection is premature and is without merit. The same is hereby dismissed with costs.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 2ND MARCH 2023AGNES KITIKU NZEIJUDGEORDERIn view of restrictions on physical court operations occasioned by the COVID-19 Pandemic, this Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment ofcourt fees.AGNES KITIKU NZEIJUDGEAppearance:………………………..for Claimant…………………… for Respondent
