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ELRCPartially AllowedNot stated in judgment· [2014] KEELRC 1114 (KLR)

Kenya Union Of Commercial Food & Allied Workers v Ruchu Garage Farmers Co-Op Society Limited [2014] KEELRC 1114 (KLR)

Industrial Court of Kenya
30 June 2014
HWHellen Wasilwa
1,001 words in judgment
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The bottom line

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Kenya's Industrial Court confirmed it can correct its own judgments on review, and a Collective Bargaining Agreement registered late is still valid.

What this practically means

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Executive summary

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The applicants moved the Industrial Court by Notice of Motion dated 30.5.2013 seeking review of the court's judgment of 18.12.2012, specifically Clause 3 of its orders, on the ground that severance pay had been erroneously tabulated at 15 days' salary per year worked instead of the longer periods provided in the parties' Collective Bargaining Agreement. The application was grounded on Sections 3, 12 and 16 of the Industrial Court Act 2011, Rule 32 of the Industrial Court (Procedure) Rules 2010 and Section 87 of the Employment Act 2007. The respondents opposed, filing grounds of argument and skeletal submissions but failing to attend the consented hearing date. They argued there was no error apparent on the face of the record since the CBA had been exhibited, and contended the CBA was invalid for being submitted for registration beyond the 14 days prescribed by Section 60 of the Labour Relations Act 2007. The court, per Wasilwa J, held that late submission did not invalidate the CBA because registration validates it, and that Section 60(7)(a) is not mandatory in terms. On the merits, the court found an error apparent on the face of the record: it had computed severance at 15 days per year worked whereas Article 5 of the CBA graded entitlements by length of service. Relying on Clause 5(vi), entitlement was at least 12 months. The court reviewed Order No. 3, revising severance from 15 days per year worked to 1 month for each year worked, computed at Ksh 64,240, with no order as to costs.

Key legal issues

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01

Validity of a Collective Bargaining Agreement registered beyond the statutory 14-day period

Holding

The CBA remained valid despite late registration; registration validates the agreement.

Reasoning

Section 60(1) of the Labour Relations Act requires every Collective Agreement to be submitted for registration within fourteen days of conclusion. However, the court does not blindly register CBAs; it follows parameters and may refuse registration. Since registration occurred, the agreement was validated. Section 60(7)(a) permitting registration within fourteen days of receipt is not mandatory in wording, so late registration did not invalidate the CBA's authenticity.

p. 2
02

Whether the severance computation constituted an error apparent on the face of the record

Holding

Yes - the court erred in computing severance at 15 days per year worked instead of applying the CBA's graduated rates under Article 5.

Reasoning

The claimant had asked the court to compute severance per the CBA, whose Article 5 categorized calculations by length of service. For 11 years served (January 1999 to February 2009), Clause 5(viii) would have referred the matter to a joint Committee, but absent proof of that, Clause 5(vi) indicated at least 12 months. Computing at 15 days per year was therefore an error apparent on the record warranting review.

p. 3

Legal principles established

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  • The Industrial Court has power to review its own judgments, awards, orders or decrees in accordance with the Rules under Section 16 of the Industrial Court Act 2011.
  • Late submission of a Collective Agreement for registration beyond the 14 days prescribed by Section 60(1) of the Labour Relations Act does not invalidate it, as registration by the court validates the agreement.
  • Section 60(7)(a) of the Labour Relations Act, allowing registration within fourteen days of receipt, is not couched in mandatory terms.
  • Review may lie where there is a mistake or error apparent on the face of the record.

Court orders

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  1. 1.Review of Order No. 3 of the judgment of 18.12.2012, revising severance pay from 15 days salary for each year worked to 1 month for each year worked
  2. 2.Severance pay computed at Ksh 32,120 x 2 = Ksh 64,240
  3. 3.No order as to costs

Authorities

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Legislation

  • Industrial Court ActSections 3, 12, 16
  • Industrial Court (Procedure) Rules 2010Rule 32(1)
  • Employment Act 2007Section 87
  • Labour Relations Act 2007Sections 60(1), 60(7)(a)
Jurisdiction invoked
Sections 3, 12 and 16 of the Industrial Court Act 2011; Rule 32 of the Industrial Court (Procedure) Rules 2010; Section 87 of the Employment Act 2007

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 Union Of Commercial Food & Allied Workers v Ruchu Garage Farmers Co-Op Society Limited [2014] KEELRC 1114 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1114/eng@2014-06-30

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