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ELRCOtherCause No. 78 of 2002· [2003] KEELRC 21 (KLR)

KENYA CHEMICAL & ALLIED WORKERS’ UNION V BOC KENYA LTD [2003] KEELRC 21 (KLR)

Industrial Court of Kenya
2 April 2003
CCCharles P. ChemmuttutJKJ.M. KilonzoAKA.K. Kerich
457 words in judgment
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The bottom line

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Kenya's Industrial Court turned a union and employer's out-of-court settlement into a binding award, restoring an dismissed worker's full terminal benefits.

What this practically means

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Executive summary

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This was a trade dispute referred to the Industrial Court of Kenya at Nairobi by the Minister for Labour on 27th September 2002 under Section 8 of the Trade Disputes Act, Cap. 234, concerning the dismissal of Mr. Sebastian Njagi Nyaga, a grievant represented by the Kenya Chemical & Allied Workers' Union against BOC Kenya Ltd. The reference came with statutory certificates from the Labour Commissioner and the Minister under Section 14(9)(e) and (f) of the Act. The parties were directed to file written memoranda; the Union filed on 20th December 2002 and the Company belatedly filed its reply on 31st March 2003. Before the hearing commenced on 2nd April 2003, the parties arrived at an amicable settlement, signed by Mr. Evans K. Kahiga for the Company and Mr. W.D. Ogutu for the Union, and witnessed by Mr. J.N. Namasake of the F.K.E. They prayed for entry of an award by consent in terms of the memorandum of agreement. The settlement provided that the dismissal be reduced to normal termination with normal terminal benefits under the prevailing CBA; two months' notice pay of Ksh.29,448/=; payment for 81 days' accrued leave of Ksh.39,210/=; an ex-gratia payment of Ksh.29,448/=; and the grievant's Provident Fund of Ksh.41,153.70 - all payable less statutory deductions and liabilities due to Hewa Co-operative as at 30/3/97 of Ksh.16,037/=. Judge Charles P. Chemmuttut, sitting with Members J.M. Kilonzo and A.K. Kerich, found the terms fair and reasonable and awarded accordingly. No case authorities were cited; the matter was resolved by consent rather than contested adjudication.

Key legal issues

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Adoption of a memorandum of agreement as an award by consent

Holding

The Court adopted the parties' signed settlement in full as its award.

Reasoning

The dispute, referred by the Minister for Labour under Section 8 of the Trade Disputes Act, was settled amicably before hearing. The parties presented a memorandum of agreement signed by their authorised representatives and witnessed by the F.K.E. Principal Executive Officer, praying that an award by consent be entered. The Judge considered the terms - reduction of dismissal to normal termination, notice pay, accrued leave, ex-gratia payment and Provident Fund, less deductions - and found them fair and reasonable, awarding in those terms.

p. 2

Legal principles established

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  • A consensual settlement of a trade dispute referred to the Industrial Court may be adopted and entered as an award by consent where the Court finds the terms fair and reasonable.

Court orders

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  1. 1.The dismissal of Mr. S.N. Nyaga be reduced to normal termination to qualify for normal terminal benefits with the prevailing Collective Bargaining Agreement
  2. 2.Payment of two months' notice pay of Ksh.29,448/= under the CBA
  3. 3.Payment for accrued leave of 81 days amounting to Ksh.39,210/=
  4. 4.Payment of Ksh.29,448/= on an ex-gratia basis
  5. 5.Payment of the grievant's Provident Fund amounting to Ksh.41,153.70
  6. 6.All payments to be made less statutory deductions and liabilities due to Hewa Co-operative as at 30/3/97, amounting to Ksh.16,037/=

Authorities

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Legislation

  • Trade Disputes ActSection 8
  • Trade Disputes ActSection 14(9)(e) and (f)
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya - reference by the Minister for Labour

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 CHEMICAL & ALLIED WORKERS’ UNION V BOC KENYA LTD [2003] KEELRC 21 (KLR)", Case Analysis (2003). Cause No. 78 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2003/21/eng@2003-04-02

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