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ELRCDismissedReview Application arising from Industrial Court Award dated 26th September 2008 (dispute referred under Section 8, Trade Disputes Act Cap 234)· [2014] KEELRC 400 (KLR)

Kenya Local Government Workers Union & another v Sub-County Administrator, Thika [Kiambu County] [2014] KEELRC 400 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
27 June 2014
1,400 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a worker's attempt to win extra money because he used the wrong legal procedure and the original award was already fair.

What this practically means

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Executive summary

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This was a review application arising from a dispute referred to the Industrial Court in December 2007 by the Minister for Labour under Section 8 of the repealed Trade Disputes Act Cap 234. The Grievant, an Askari employed by Thika Municipal Council in 1980, had his contract terminated in May 1993. An Investigator found the dismissal wrongful and recommended 10 months' salary in compensation plus terminal benefits. The Employer rejected the report. In an Award dated 26th September 2008, the Court (Chemmuttut J, with Wafula and Kilonzo as Members) declined reinstatement and granted the Grievant's alternative prayer of Kshs. 1,944,406, less deductions of Kshs. 247,578, leaving Kshs. 1,696,828, which was paid in full. A High Court judicial review application against the Award (J.R. No. 708 of 2008, Gacheche J, 29th March 2011) failed to disturb it. In 2013 the Grievant, acting alone after his Union withdrew, sought review claiming additional sums of Kshs. 1,774,308 including leave pay, 12 months' compensation, service pay and damages. The Court (Rika J) dismissed the application: the review invoked the wrong substantive and procedural law, since the Trade Disputes Act and its pre-2010 Rules governed such disputes; the only avenues to revisit the Award were rectification or interpretation; and the amended notice was signed by a stranger. The Court held the original Award was fair, lawful and legal and that litigation must come to an end, dismissing the review with no order on costs.

Key legal issues

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01

Applicable substantive and procedural law to a pre-2007 termination dispute

Holding

The Trade Disputes Act and its pre-2010 Procedure Rules, not the Industrial Court Act 2011 or the 2010 Rules, governed the review application.

Reasoning

The dispute arose from a termination in 1993 and was reported to the Minister in 1997 under the Trade Disputes Act. The Labour Relations Act 2007 (Section 84, Schedule 5) preserved the Trade Disputes Act for such disputes. The 2nd Claimant therefore wrongly invoked the Industrial Court Act 2011 and the Industrial Court (Procedure) Rules 2010; the correct rules were those under Section 58(1) of the Trade Disputes Act existing before 4th May 2010.

02

Whether the original Award should be disturbed on review

Holding

No. The Court exercised its discretion judiciously under Section 15 of the Trade Disputes Act and the Award was fair, lawful and legal.

Reasoning

Section 15 allowed reinstatement or compensation capped at 12 months' salary. The original Court balanced the interests of Employer and Employee, considering the Grievant rendered no labour over 15 years, and granted accumulated salary as adequate redress. It was not obliged to grant additional compensation, terminal dues, costs and interest, and this Court cannot interfere with that discretion.

p. 3
03

Procedural defects in the amended notice of review

Holding

The amended notice was drawn, signed and filed by a stranger, Mrs. S. Kariuki, whose capacity was never explained.

Reasoning

The 2nd Claimant was not a party to the original claim but a Grievant. After his Union declined to continue representation he was given the chance to amend his application but introduced documents signed by a person whose capacity was unexplained, compounding the defectiveness of the review.

p. 3

Legal principles established

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  • Disputes on termination arising prior to the enactment of the Labour Relations Act 2007 are dealt with in accordance with the Trade Disputes Act.
  • Review of an Award under the Trade Disputes Act was available only through rectification under Rule 20 or interpretation under Rule 21, not a general review.

Court orders

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  1. 1.The application for review is dismissed with no order on the costs

Authorities

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Legislation

  • Trade Disputes Act Cap 234Sections 8, 14[9][e] and [f], 15, 58[1]
  • Labour Relations Act 2007Section 84, Schedule 5
  • Industrial Court Act
  • Industrial Court [Procedure] Rules 2010
  • Industrial Court [Procedure] Rules (pre-4th May 2010)Rules 20 and 21
Jurisdiction invoked
Section 8 of the repealed Trade Disputes Act Cap 234, the Laws of Kenya; cognizance taken under Section 14[9][e] and [f]

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 Local Government Workers Union & another v Sub-County Administrator, Thika [Kiambu County] [2014] KEELRC 400 (KLR)", Case Analysis (2014). Review Application arising from Industrial Court Award dated 26th September 2008 (dispute referred under Section 8, Trade Disputes Act Cap 234). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/400/eng@2014-06-27

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