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ELRCPartially AllowedCause (review application arising from Memorandum of Claim filed 7 May 2012; number not stated in judgment)· [2014] KEELRC 1071 (KLR)

Godfrey Njunge Samuel v G4s Security Services Ltd [2014] KEELRC 1071 (KLR)

Industrial Court of Kenya
20 June 2014
RSRadido Stephen
879 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out a worker's compensation award because judges had applied a 2007 employment law to a firing that happened before it took effect.

What this practically means

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Executive summary

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This is a ruling on the respondent's application to review the Industrial Court's judgment of 4 October 2013, which had found the claimant's termination both procedurally and substantively unfair and awarded him compensation of six months' gross wages, assessed at Kshs 220,000/-. The respondent applied under sections 3 and 12 of the Industrial Court Act and rule 32 of the Industrial Court (Procedure) Rules, 2010, contending an error apparent on the face of the record: the judgment had been decided on sections 41 and 45 of the Employment Act, 2007, yet the claimant was terminated on 6 September 2007, before that Act commenced. The claimant opposed, asserting no error existed and the application was an abuse of process. The parties agreed the application be determined on the documents. The court held that the applicable law at termination was the Employment Act, cap. 226 (repealed), under which an employer could terminate without cause upon giving contractual notice or pay in lieu, and that the respondent had complied with the contract by paying one month's wages in lieu. Although the review grounds were made out, the court went further and considered whether the claimant could have succeeded under the Trade Disputes Act (repealed), concluding that individual litigants lacked direct access to the then Industrial Court unless a dispute was referred by the Minister, and there was no suggestion the claimant was a union member. The review application therefore succeeded; the judgment of 4 October 2013 was reviewed, its orders set aside, and the Memorandum of Claim filed on 7 May 2012 was dismissed with no order as to costs.

Key legal issues

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01

Whether applying the Employment Act, 2007 to a 2007 pre-commencement termination was an error apparent on the face of the record warranting review

Holding

Yes; the Court erred in relying on sections 41 and 45 of the Employment Act, 2007 to award compensation, and the application fell within rule 32(1)(b), (c) and (e)

Reasoning

The termination took place on 6 September 2007 before the Employment Act, 2007 came into operation, so the applicable statute was the Employment Act cap. 226 (repealed). The original judgment was expressly based on sections 41 and 45 of the 2007 Act, satisfying review grounds of error apparent on the face of the record, breach of a written law and other sufficient reasons.

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02

Whether the claimant could nonetheless recover under the law applicable at termination

Holding

No; he had no access to the Industrial Court under the Trade Disputes Act since he was not shown to be a trade union member, and the termination complied with the contract

Reasoning

Under section 14(9) of the Trade Disputes Act (repealed), the Industrial Court could only take cognizance of disputes referred through the Minister, on report by trade unions or employers' organisations. There was no suggestion the claimant belonged to a union. His contract allowed termination on one month's notice or pay in lieu, which the respondent honoured, so no breach arose.

p. 2

Legal principles established

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  • Where a termination occurred before the commencement of the Employment Act, 2007, the applicable law was the Employment Act cap. 226 (repealed), under which an employer could terminate without cause provided contractual notice was given or pay in lieu was made
  • Under the Trade Disputes Act (repealed), individual litigants did not have automatic access to the Industrial Court; the Court could take cognizance of a dispute only if referred by the Minister, and disputes were reported by trade unions or employers' organisations

Court orders

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  1. 1.The judgment delivered on 4 October 2013 is reviewed and the orders granted therein are set aside
  2. 2.Substituted thereon is an order dismissing the Memorandum of Claim filed in Court on 7 May 2012
  3. 3.No order as to costs

Authorities

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Legislation

  • Industrial Court Actsections 3 and 12
  • Industrial Court (Procedure) Rules, 2010rule 32(1)(b), (c) and (e)
  • Civil Procedure RulesOrder 51
  • Employment Act, 2007sections 41 and 45
  • Employment Act, cap. 226 (repealed)
  • Trade Disputes Act, cap. 234 (repealed)sections 14(9) and 15

Cases cited (2)

  • Cyrus Nyaga Kabute v Kirinyaga County Council
    Civil Appeal No. 29 of 1985
  • Rift Valley Textiles Ltd v Edward Onyango Oganda
    Nakuru Civil Appeal No. 27 of 1992
Jurisdiction invoked
Sections 3 and 12 of the Industrial Court Act and rule 32 of the Industrial Court (Procedure) Rules, 2010 (review jurisdiction); Order 51 of the Civil Procedure Rules also referenced

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, "Godfrey Njunge Samuel v G4s Security Services Ltd [2014] KEELRC 1071 (KLR)", Case Analysis (2014). Cause (review application arising from Memorandum of Claim filed 7 May 2012; number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1071/eng@2014-06-20

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