Kenya Union of Commercial, Food and Allied Workers v Limuru Milk Processors [2014] KEELRC 1414 (KLR)
The bottom line
#A Kenyan employer's late bid to reverse a redundancy award failed because it skipped the correct court review rules and missed its own hearing.
What this practically means
#Executive summary
#Key legal issues
#Setting aside ex parte judgment and leave to defend
Refused; a defence was already on record and the hearing date was taken by consent, so the prayer was an abuse of process and misconceived.
The court found that at all material times the respondent had filed a defence which the court had considered at paragraph 7 of the judgment, finding only bare denials. The hearing date was taken by consent and no valid reason for non-attendance was established. Seeking leave to file a further defence was therefore misconceived and an abuse of court process.
Effect of section 35(6) Employment Act on redundancy dues
Section 35(6) was irrelevant to the redundancy situation; it does not bar a more favourable CBA redundancy package or section 40 entitlements.
The court found no diligence-based justification for raising the point only after judgment; no proper review application was made under the court's rules; and section 35(6) does not bar parties from agreeing more favourable redundancy terms. Section 40 of the Act and the CBA governed, and employees take the more favourable option of terminal dues.
Competency of the application for want of invocation of the correct rules
The claimant's objection that rules 16 and 32 of the Industrial Court Procedure Rules, 2010 governed review and were not invoked was accepted.
The claimant's preliminary objection and replying affidavit argued that the respondent failed to invoke the court's rules for review or setting aside of a decree. The court endorsed this, holding there was no application for review made in accordance with the rules of the court to justify the respondent's submissions on the alleged error or new discovery.
Legal principles established
#- Where an employee is entitled to more than one option of terminal benefits, and absent any justified bar, the employee is entitled to the more favourable option.
- Section 35(6) of the Employment Act (gratuity and provident fund) does not bar parties from negotiating more favourable redundancy packages under a CBA or from the operation of section 40 on redundancy.
Court orders
#- 1.The respondent's notice of motion filed on 14.07.2014 and dated 2.07.2014 is dismissed
- 2.Costs of the application awarded to the claimant
- Jurisdiction invoked
- Order 22 Rule 22(1) of the Civil Procedure Rules, Section 35(6) of the Employment Act, 2007 and Section 3A of the Civil Procedure Act (as invoked by the respondent's application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Limuru Milk Processors [2014] KEELRC 1414 (KLR)", Case Analysis (2014). Not stated in the judgment as supplied. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1414/eng@2014-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.