Association for the Physically Disabled of Kenya v Kenya Union of Domestic Hotels Educational Hospital and Allied Workers Union & another [2018] KECA 618 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed employers can overturn reinstatement orders built on directives against parties who were never heard in the case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Judge erred in ordering the reinstatement of the claimants to their jobs without loss of salaries, seniority, privileges and other benefits
- 2.Whether a directive binding the government to pay an annual subsidy could be issued where the government was never a party to the proceedings
Key legal issues
#Whether reinstatement could be ordered after a finding that the redundancy was lawful
No. Having found the redundancy lawful and fair under section 40 of the Employment Act and the CBA, the trial Judge could not order reinstatement based only on the claimants being a special class of employees.
The court held it was common ground that the 24 claimants were lawfully declared redundant, a finding unchallenged by cross-appeal. Section 40 sets out the conditions for lawful redundancy, which the appellant had complied with. Reinstatement contradicted the Judge's own findings that the appellant lacked the financial capacity to retain the workers, and rested on an unpleaded government subsidy directive.
Whether a binding directive could issue against the government when it was not a party
No. Directing the Government to pay an annual subsidy of Kshs.5 million without joining the Attorney General or affording the Government a hearing breached natural justice and could not stand.
The issue of the subsidy was never pleaded, and the Attorney General as legal representative of the Government was not party to the proceedings. The directive was premised on an unimplemented proposal letter, not on any government policy. Enforcing orders against a non-party would offend the audi alteram partem principle; a decision in breach of natural justice is not cured by the correctness of the outcome.
Legal principles established
#- A court cannot issue a binding directive against a party who was not joined to the proceedings and was never heard, as this violates the audi alteram partem rule of natural justice
- A contract binds only the parties to it and cannot be enforced by or against a stranger to it
- Once a redundancy has been lawfully declared and executed, a court cannot, on the same findings, order reinstatement merely because the employees fall in a special category
Court orders
#- 1.Appeal allowed
- 2.Orders made on 23rd March 2015 and all consequential orders set aside
- 3.1st respondent's claim stands dismissed
- 4.Each party to bear their own costs in the appeal and in the court below
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Mombasa
- E.L.R.C Cause No. 348 of 2013
- Jurisdiction invoked
- First appeal to the Court of Appeal from the Employment and Labour Relations Court
Relief refused
#Reinstatement of the 24 retrenched employees
The redundancy was lawful and the reinstatement order was founded on a subsidy directive made against a non-party government, in breach of natural justice
Costs
Each party to bear their own costs in this appeal and the court below
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
we find this appeal has merit and it is hereby allowed with the result that the orders made on the 23 rd March, 2015 and all consequential orders are hereby set aside and the 1 st respondent's claim stands dismissed
we order that each party do bear their own costs in this appeal and the court below
this was a blatant violation of natural justice rule and in particular, the audi alteram partem principle, which demands that no person should be condemned unheard
having declared that the claimants were legally and fairly declared redundant, could the court by the same stroke of the same pen, order a reinstatement merely because the claimants fell into a special category of employees, without any pleading or joinder of the government
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Association for the Physically Disabled of Kenya v Kenya Union of Domestic Hotels Educational Hospital and Allied Workers Union & another [2018] KECA 618 (KLR)", Case Analysis (2018). Civil Appeal No. 116 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/618/eng@2018-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.