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Court of AppealDismissedCivil Appeal No. 309 of 2016

Kenya Union of Commercial food allied Workers v British America Tobacco Kenya Limited [2017] KECA 89 (KLR)

Court of Appeal of Kenya
15 December 2017
2,219 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that a judge settling a decree can only enforce what the original award actually says—no extra wages or interest can be added.

What this practically means

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Executive summary

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This appeal arose from the settlement of terms of an award issued by the Employment and Labour Relations Court on 3rd October 2008 in a dispute over the redundancy of six unionised employees of British America Tobacco Kenya Limited declared redundant on 1st October 2006. The trial court found the redundancy unprocedural and ordered reinstatement or, alternatively, terminal dues including 12 months' salary as compensation. Judicial review proceedings seeking to quash that award were dismissed in April 2015. A consent recorded before Warsame, J. in May 2012 secured payment of undisputed terminal dues, but three employees, including Benson Mwangi Macharia, claimed entitlement to all salaries and allowances they would have earned to retirement age. The parties could not agree on the terms of the decree, and the Registrar placed the matter before Wasilwa, J., who held that anticipatory wages were not an option and computed the compensation due under the award, awarding a balance of Kshs.1,469,561.05. The union, on behalf of Macharia, appealed on 22 grounds, contending the Judge reviewed the award without an application, miscomputed the compensation, ignored the CBA, and failed to award interest. The Court of Appeal (Visram, Karanja & Koome, JJ.A) dismissed the appeal. It held that the Judge settling terms of a decree does not re-evaluate evidence but ensures the decree reflects the award, that no formal application is required to trigger that jurisdiction, that anticipatory wages were not available since the award offered only reinstatement or compensation, and that interest could not be introduced where the trial award made no provision for it. The Court affirmed the judgment below and awarded costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge, in settling the terms of the decree, erred by reviewing or interpreting the award when no application for review or interpretation had been made
  2. 2.Whether the Judge erred in the computation of the compensation payable to Benson Mwangi Macharia under the award, including failure to consider the CBA
  3. 3.Whether the Judge was entitled to award anticipatory wages (salaries from 2006 to retirement)
  4. 4.Whether the Judge erred in finding that a consent was recorded before Warsame, J. on 22nd May 2012
  5. 5.Whether the Judge should have awarded interest from the date of the award

Key legal issues

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01

Scope of the court's power to settle terms of a decree under Order 21 Rule 8(4) of the Civil Procedure Rules

Holding

No formal application for review or interpretation is required; when parties cannot agree on the terms of the decree, the Registrar places the matter before the Judge, whose duty is to ensure the decree reflects the judgment or award and to compute the sums due, without re-evaluating the merits.

Reasoning

The authority to settle terms derives from Order 21 Rule 8(4). The essence of settling terms is that the resulting decree reflects the terms of the judgment/award. The Judge's jurisdiction is set in motion when the parties cannot agree and the Registrar places the matter before her; no formal application is needed, and computing compensation under the award is part of that function.

p. 1
02

Whether anticipatory wages could be awarded in settlement of the decree

Holding

No. The award offered only reinstatement or compensation for the unprocedural redundancy; having opted for compensation, the employee's entitlement was strictly limited to the award's terms.

Reasoning

The award of 3rd October 2008 gave employees a choice between reinstatement or terminal dues including 12 months' compensation. Benson Macharia opted for compensation; the decree in settlement of the award could not add remedies not contained in the award, so anticipatory salaries to retirement age were not available.

p. 4
03

Award of interest in settling terms of the decree

Holding

Interest could not be introduced at the settlement stage because the trial award made no provision for it; interest is discretionary and the discretion had been exercised against it.

Reasoning

An award of interest is discretionary and must be exercised judiciously. An appellate court interferes only where the discretion was not properly exercised. Since the trial Judge (Kosgei, J.) did not grant interest in the award, the Judge settling terms could not introduce it, nor was interest pleaded.

p. 4
04

Existence of the consent recorded before Warsame, J. on 22nd May 2012

Holding

The consent was properly recorded and acted upon; the respondent paid Kshs.1,753,640 which the appellant accepted as redundancy dues under the CBA.

Reasoning

The court found the record bore witness to the consent and the subsequent payment; the appellant's denial of the consent was therefore unsustainable.

p. 4

Legal principles established

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  • In settling the terms of a decree or order, the court's role is to make clear what the judgment or award meant, not to re-evaluate the evidence or vary its substance
  • Where a party does not appeal against a decision, it cannot raise grounds attacking that decision in submissions, and an appellate court lacks jurisdiction to consider them
  • An appellate court will not interfere with a trial judge's discretionary decision, such as an award of interest, absent proof that the discretion was not exercised properly

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

Martha Karambu Koome
M.K. KoomeJA
Currently serving
majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court of Kenya at Nairobi
Cause No. 143 of 2007
Jurisdiction invoked
First appeal from the Employment and Labour Relations Court under the Employment and Labour Relations Court Act and Civil Procedure Rules (Order 21 Rule 8(4))

Relief refused

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Award of anticipatory wages/salaries and allowances from date of redundancy to retirement

The award provided only two options: reinstatement or compensation; having opted for compensation, entitlement was limited to the award terms

p. 4

Interest from the date of the award

The trial court's award made no provision for interest; the Judge in settling terms could not introduce it

p. 5

Costs

Appeal dismissed with costs to the respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result and for reasons we have endeavoured to give above this appeal is absolutely without merit and we order that it be and is hereby dismissed with costs to the respondent.
p. 5Final orders - dismissal of appeal
The essence of settling terms is to ensure that the resulting decree reflects the terms of the judgment/award/ruling in question.
p. 1Purpose of settling terms of a decree
When a Judge is settling the terms of a Decree or Order, his role does not extend to a re-evaluation of the evidence and submissions which led the trial court to arrive at its decision.
p. 4Limits of the judge's role when settling terms
There was no provision for anticipatory salaries and allowances under the award. There were only two options, reinstatement or compensation for the uprocedural redundancy.
p. 4Anticipatory wages not available under the award
the trial Judge (Kosgei, J.) did not grant interest in the award and it followed that the learned Judge (Wasilwa, J.) could not introduce or issue the same.
p. 5Interest cannot be introduced at settlement stage

Issues in the judgment

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minor

The judgment inconsistently names the trial judge in the ELRC award, attributing the 3rd October 2008 award to Kosgei, J. although the appeal is from a judgment of Wasilwa, J. in the same Cause No. 143 of 2007; the spelling 'Waswila' also appears once

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Commercial food allied Workers v British America Tobacco Kenya Limited [2017] KECA 89 (KLR)", Case Analysis (2017). Civil Appeal No. 309 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/89/eng@2017-12-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.