Whether the claim is premature?
21.The issue whether a suit is premature goes to the question whether the court’s jurisdiction was properly invoked.
22.The Claimant referred a trade dispute to the Cabinet Secretary, Ministry of Labour and Social Protection on March 14, 2023, after the respective parties had attempted to agree on the execution of the Recognition agreement via written communication and physical meetings, but to no avail.
23.A Conciliator was appointed vide the letter of 12th April 2023 , through which letter the parties were directed to file their respective proposals within seven days from the date of the said letter.
24.Section 67 of Labour Relations Act(LRA) provides that a Conciliator shall attempt to resolve the trade dispute referred to in section 65(1) within (a) thirty days of the appointment; or (b) any extended period agreed to by parties to the trade dispute.
25.The Claimant argues that the conciliator did not invite parties to conciliation within 30 days nor did the parties extend the said period. The claimant argues that due to the plight of its members who were being harassed by the Respondent to withdraw their membership from the Claimant, it exercised due diligence, filed its Memorandum of dispute and due to the delays in the conciliation, invoked the court process.
26.The Respondent on the other hand submits that, the dispute was before the conciliator for conciliation and before the same was finalised the Claimant brought the present suit. The Respondent states that the conciliator recommended that the claimant undertakes a Capacity building exercise, and that there is no evidence of unresolved dispute. The Respondent argues that the matter be referred to the conciliator to resolve.
27.The letter appointing the conciliator stated that the said memorandum of dispute was to be filed by each party within seven days from 12th April 2023. As at 17th April 2023, when all parties were to file their respective memoranda, none of them had filed. The claimant filed its memorandum of dispute on 29th May 2023(pg.25- 28 of claim).There was no evidence whether the Respondent filed its memorandum before the conciliator.
28.The claimant proceeded and filed the present suit on 15th June 2023, seventeen days after filing its memorandum with the Conciliator, suspending the progress of any Conciliation process.
29.By virtue of Section 67 of LRA, the conciliator can only resolve a dispute which has been filed before him or her; which is the Memoranda to be filed by the respective parties. It is once the parties have filed their respective issues in dispute that a conciliation process can begin as the Conciliator cannot help parties resolve a dispute without having a summary of each party’s issue in dispute.
30.With the Claimant having filed its Memorandum of dispute on 29th May 2023, whether or not the Respondent filed its own Memorandum, the Conciliator mandate to conciliate the dispute is within Thirty days or more as the case may be.
31.Section 69 of LRA provides that a dispute is deemed unresolved after conciliation if:-a.Conciliator issues a certificate that the dispute has not been resolved by conciliation or; b.the Thirty days’ period from appointment of conciliator or any longer period as agreed by the parties expire.
32.When the Claimant filed the Memorandum of dispute on 29th May 2023, the Conciliator had thirty days within which the parties could be heard. The Claimant’s action of filing the claim seventeen days after it filed its memorandum was premature as the Conciliator still had time to hear the parties. The claimant has not produced before court any evidence that any of the subscribed members of the respondent indeed withdrew their membership to warrant the abandoning of the conciliation process.
33.By virtue of Rule 5(3) of the Employment and Labour Relations Court (Procedure) Rules 2016 , if conciliation has not taken place, the statement of claim is to be accompanied by an affidavit sworn by the claimant or by the representative of that claimant attesting to the reasons why conciliation has not taken place.
34.There was no affidavit sworn by the representative of the claimant attesting to the reasons why conciliation has not taken place. The provisions of Rule 5(3)(supra) are couched in mandatory terms to require that where a dispute was referred to conciliation and the conciliation does not take place, aside from the Statement of Claim filed, a separate affidavit be sworn attesting the reasons why the conciliation did not take place. There was no affidavit filed by the Claimant to this extend.
35.In view of the foregoing, the court discerned that the conciliation process was pending. By dint of the Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 5 which requires that where a dispute has been subject of conciliation, the Claim shall be accompanied by Conciliator’s Report, Certificate of Conciliation or an Affidavit sworn by the Claimant, attesting to the reasons why Certificate of Conciliation has not issued, the same are not available. The issue cannot be properly adjudicated upon by the Court, while it is pending the consideration of the Conciliator.
36.Article 159(2) of the Constitution stipulates that in exercise of judicial authority, the Court shall promote alternative forms of dispute resolution. It is the opinion of the court that once a Party has invoked the conciliation Mechanisms under the Labour Relations Act section 65, that Party must exhaust those mechanisms, before coming to Court. It is improper for the Claimant to abandon the conciliation process mid-stream, and initiate judicial process. In this dispute, there is an ongoing conciliation process. The Conciliator has not issued any Certificate, to indicate failure of conciliation. It is not known if in the end, Parties will record settlement.
37.The Court is guided by the Court of Appeal in Karen Blixen Camp Limited v Kenya Hotels and Allied Workers Union  eKLR(Waki, Makhandia & Gatembu, JJ.A) Which in allowing a statement of claim to be heard without finalizing the conciliation process held that:-
38.In the upshot, considering that the Claimant abandoned the conciliation process even before the same commenced and there being no evidence before the court that its members were harassed by the Respondent, I Hold that the Claim herein is premature and improperly brought before the Court.