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ELRCDismissedNot stated in judgment· [2013] KEELRC 98 (KLR)

Nicholas Otieno v Patco Industries Limited [2013] KEELRC 98 (KLR)

Industrial Court of Kenya
15 January 2013
NMNzioki wa Makau
1,860 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court dismissed an employer's review, confirming that short-serving employees can still claim unfair termination despite the 13-month rule.

What this practically means

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Executive summary

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The Respondent (employer) applied by notice dated 18th February 2011 for review of an award made on 7th February 2011 by Judge Kosgey, in which the Claimant, though employed for less than thirteen months, was awarded KShs 150,000 as compensation. The applicant argued that the award contravened Section 45(3) of the Employment Act, which confines the right to complain of unfair termination to employees with at least thirteen months' continuous service, and that the error was apparent on the face of the record. Counsel for the Claimant opposed, contending that no ground under Rule 32 of the Industrial Court Rules was demonstrated and that the High Court in Samuel G. Momanyi v AG & SDV Transami had since declared Section 45(3) unconstitutional. The Court framed two issues: whether the award was open to review, and whether Judge Kosgey erred in overlooking Section 45(3). It held that, as successor to the former Industrial Court, it could review awards made by judges who continued sitting under Section 33 of the Industrial Court Act. On the merits, it agreed with Momanyi that Section 45(3) was discriminatory and unconstitutional, and held that Judge Kosgey's purposive interpretation, informed by Articles 27, 41 and 48 of the Constitution, involved no error. The review application was dismissed with costs to the Claimant.

Key legal issues

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01

Jurisdiction to review an award of the former Industrial Court

Holding

The Court, as successor to the predecessor tribunal, is permitted to review the decisions of the former Industrial Court where the award was made by a judge continuing to sit under Section 33.

Reasoning

Section 16 of the Industrial Court Act empowers the Court to review its judgments and awards in accordance with the Rules, and Rule 32 sets out the grounds. The predecessor was established under the Labour Institutions Act, repealed by the Industrial Court Act No. 20 of 2011. Section 33 preserved pending proceedings, and Judge Kosgey had continued to sit under that section. Since the applicant's judge no longer sits, the successor Court may review his award.

p. 2
02

Whether Judge Kosgey erred in overlooking Section 45(3) of the Employment Act

Holding

No error. The thirteen-month threshold in Section 45(3) was discriminatory and unconstitutional, and Judge Kosgey's purposive interpretation admitting the claim was correct.

Reasoning

The High Court in Samuel G. Momanyi v AG & SDV Transami later declared Section 45(3) unconstitutional as denying workers with less than thirteen months' service access to justice, contrary to Articles 27, 41 and 48. Although that decision post-dated the award, Judge Kosgey had applied the same reasoning earlier. A purposive interpretation, per Lord Denning in Notham and the unified approach of Sir Rupert Cross, permits reading a provision to avoid unconstitutional, absurd or unworkable results. The claimant could not be barred by the 'magical' 13 months.

p. 3

Legal principles established

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  • The Industrial Court has power to review decisions of the former Industrial Court where the judge who made the award had continued to sit under Section 33 of the Industrial Court Act.
  • Section 45(3) of the Employment Act, limiting the right to complain of unfair termination to employees with at least thirteen months' continuous service, was discriminatory and unconstitutional.

Court orders

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  1. 1.The review application is dismissed
  2. 2.Costs to the Claimant
Jurisdiction invoked
Section 16 of the Industrial Court Act and Rule 32 of the Industrial Court Rules 2010 (review of judgments, awards, orders or decrees of the Court)

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, "Nicholas Otieno v Patco Industries Limited [2013] KEELRC 98 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/98/eng@2013-01-15

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