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ELRCDismissedApplication dated 22nd April 2013· [2013] KEELRC 259 (KLR)

KENYA NATIONAL PRIVATE SECURITY WORKERS UNION V KENYA KAZI SECURITY SERVICES LIMITED [2013] KEELRC 259 (KLR)

Industrial Court of Kenya
27 May 2013
2,960 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 refused to delay a wage award, ruling employees must enjoy the fruits of their awards unless very strong reasons justify making them wait.

What this practically means

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Executive summary

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The Industrial Court ruled on the Respondent's application dated 22nd April 2013 seeking stay of execution of the Second Award of 26th March 2013, which resolved twenty-two collective bargaining subjects between the Claimant union and the Respondent security services contractor at the US Embassy Nairobi. The Respondent, having filed a Notice of Appeal on 11th April 2013, argued it had an arguable appeal, that the Court lacked jurisdiction to award for only a section of employees, and that implementation costing about Kshs. 11.6 million monthly and Kshs. 116.8 million in arrears would cause substantial loss and render its US Embassy contract unsustainable. The Claimant countered that payment of what was awarded, largely statutory minimums, is not substantial loss, and relied on the Pan African Insurance v. IATA formulation of substantial loss. The Court applied Rule 31(2) of the Industrial Court (Procedure) Rules and High Court stay principles, weighted toward the Industrial Court's mandate to promote collective bargaining. It found no arguable appeal on recondite matters of law — the Award was largely declaratory of statutory minimums, and the Respondent sought to appeal its own recommendations. Employees are the Respondent's own workers, so increments can be recovered if the appeal succeeds, negating nugatory-appeal claims. The Respondent's conduct — six years without a CBA after recognition in 2007 — and the lex loci laboris principle weighed against any further delay. Security deposit was also refused. The application was refused with no order on costs.

Key legal issues

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01

Whether an arguable appeal existed

Holding

No; the Award largely restated minimum statutory standards and the Respondent wished to appeal items it had itself proposed

Reasoning

The Second Award reaffirmed minimum standards under the Employment Act and the Regulation of Wages [Protective Security Services] Order 1998, and was largely declaratory rather than executory. The Notice of Appeal listed subjects such as cleaning allowance where the Court granted the Respondent's own recommendation. No draft Memorandum of Appeal was attached, and section 17(2) of the Industrial Court Act confines appeals to matters of law.

p. 3
02

Whether substantial loss or nugatory appeal was shown

Holding

No; Claimant's members are the Respondent's own employees, so increments can be recovered from future entitlements

Reasoning

The Court found no collateral or inherent circumstances that would destroy the subject matter or render the appeal nugatory. Employees are not third parties; any wage increments paid could be deducted from future entitlements if the appeal succeeds, so the status quo can be restored.

p. 4
03

Conduct of the parties and equity

Holding

The Respondent's six-year delay in concluding a CBA after recognition in 2007 meant the equity of the case did not warrant further delay

Reasoning

The record showed a pattern of resistance to minimum labour standards: technical objections, challenges to the Claimant's locus standi, failure to comply with the First Award, and repeated reliance on the US Embassy contract. The 935 guards had been deprived of the benefits of collective representation for too long.

p. 4
04

Jurisdiction objection

Holding

Without weight; a CBA may be negotiated for a specific collective bargaining unit

Reasoning

Section 57 of the Labour Relations Act requires a CBA for all employees covered by the recognition agreement, but nothing prohibits negotiation for a specific unit. The US Embassy employees form a distinctive community of interests, and the parties had litigated on that understanding through negotiation, conciliation and adjudication.

p. 4

Legal principles established

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  • In the Industrial Court, the principle that must outweigh all others in considering stay of execution is that employees must be allowed to enjoy the fruits of their Awards unless strong and special circumstances demand otherwise.
  • An applicant for stay in the Industrial Court must show recondite matters of law, since appeals from the Court lie only on matters of law.
  • The lex loci laboris maxim applies: the applicable labour law is the labour law of the place where the work is done.

Court orders

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  1. 1.The Respondent's application dated 22nd April 2013 for stay of execution of the Second Award is refused
  2. 2.No order on costs

Authorities

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Legislation

  • Labour Relations ActSection 57
  • Labour Institutions Act No. 12 of 2007Section 63
  • Industrial Court Act 2011Section 17(2)
  • Industrial Court [Procedure] Rules 2010Rule 31(2)
  • Employment Actminimum statutory standards
  • Regulation of Wages [Protective Security Services] Order

Cases cited (1)

  • Pan African Insurance Company [U] Limited v. International Air Transport Association
    HCT-00-CC-MA-086-2006
Jurisdiction invoked
Industrial Court Act 2011 and Industrial Court [Procedure] Rules 2010, Rule 31(2); Section 17(2) of the Industrial Court Act 2011 on appeals on matters of law

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 NATIONAL PRIVATE SECURITY WORKERS UNION V KENYA KAZI SECURITY SERVICES LIMITED [2013] KEELRC 259 (KLR)", Case Analysis (2013). Application dated 22nd April 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/259/eng@2013-05-27

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