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ELRCDismissedCause No. 763 of 2013 (review of judgment of 31 July 2014) - number not stated in ruling· [2014] KEELRC 1425 (KLR)

Simon Kiprotich Chepchowoi v Nandi Tea Estates Limited [2014] KEELRC 1425 (KLR)

Industrial Court of Kenya
28 November 2014
3,321 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 reopen an employment award, confirming employers must raise legal defences like limitation during the trial, not after losing.

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 a judgment of 31 July 2014 by Ongaya J, which had declared the constructive termination of the Claimant's employment unlawful under the Employment Act and the CBA signed on 26 November 2008, awarded Kshs 562,559, a certificate of service, and costs. The Respondent advanced three grounds: the award wrongly relied on a CBA not applicable to a November 2008 separation under sections 59(5) and 54(5) of the Labour Relations Act; the award of wages for a period of non-work amounted to unlawful partial reinstatement contrary to section 49 of the Employment Act; and the claim, filed in 2013 against a 2008 termination, was statute barred under section 90 of the Employment Act, going to jurisdiction. Radido J declined review. On limitation, the Court accepted that limitation is a question of law and jurisdiction, but held it had to be specifically pleaded (Order 2 rule 4, Civil Procedure Rules) and, following Achola & Ar v Hongo, a party who failed to plead it cannot raise it after judgment. On partial reinstatement, the Court saw an apparent lack of statutory basis for the wages award but directed the Respondent to appeal. On the CBA, the Court held the parties mutually agreed an effective date of 1 January 2008, the employer failed its statutory registration obligation, and equity and common law render an unregistered CBA enforceable as a common law contract, supported by Articles 36 and 41(4)(c) of the Constitution. The Court also reflected on the wider review powers under section 16 of the Industrial Court Act and rule 32 of the 2010 Rules, cautioning they should not become a backdoor appeal where interpretative discourse is needed. The review was dismissed with no order as to costs.

Key legal issues

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01

Whether limitation could be raised on review though never pleaded

Holding

The Court declined to entertain the limitation ground because the Respondent never pleaded it and cannot raise it after judgment on review.

Reasoning

The Court found that termination occurred on 5 November 2008 when the report to Police was made, so the three-year limitation period under section 90 of the Employment Act ran from then. However, applying Achola & Ar v Hongo, limitation must be specifically pleaded under Order 2 rule 4 of the Civil Procedure Rules. The Respondent did not plead it, and raising it after judgment on review is impermissible; the appropriate course was appeal.

p. 4
02

Whether award of wages for a period of non-work (partial reinstatement) lacks statutory basis

Holding

The Court acknowledged an apparent absence of statutory basis but held the challenge should be pursued on appeal, not review.

Reasoning

Section 49(3) of the Employment Act permits reinstatement with no loss of benefits, but the judgment under review did not order reinstatement, so awarding wages up to 3 October 2012 appeared to lack legal basis. Nonetheless, because the original judgment gave extensive reasons on partial reinstatement drawing on section 49(4)(f) and precedent, the proper forum for the challenge was an appeal rather than review.

p. 4
03

Applicability of the CBA registered in 2009 to a 2008 separation

Holding

The CBA was enforceable despite registration issues because the parties mutually agreed its effective date and the employer failed in its statutory registration obligation.

Reasoning

Section 59(5) of the Labour Relations Act makes a CBA enforceable only upon registration, but the parties voluntarily agreed the effective date of 1 January 2008. The employer failed to fulfil its statutory duty to lodge the agreement for registration, and equity and common law intervene against a party relying on its own non-compliance. Freedom of contract and Articles 36 and 41(4)(c) of the Constitution support enforceability as a common law contract.

p. 5
04

Scope of the Industrial Court's review powers under section 16 of the Industrial Court Act and rule 32 of its Rules

Holding

Review on grounds (c) and (d) is for glaring breaches of written law, not interpretative disagreements between judges.

Reasoning

The Industrial Court's review mandate is wider than Order 45 rule 1 of the Civil Procedure Rules, extending to judgments in breach of written law or requiring clarification. However, because judges may reasonably differ in interpreting written law, review should not become a substitute for appeal where the issue requires interpretative discourse. This case was not appropriate for review.

p. 4

Legal principles established

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  • A party who fails to plead limitation may not raise it for the first time in review proceedings after judgment has been delivered
  • An unregistered collective bargaining agreement may remain enforceable as a common law contract freely entered into by the parties
  • Review under rule 32(1)(c) and (d) is confined to decisions glaringly in breach of written law, not matters requiring interpretative discourse

Court orders

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  1. 1.The review motion is dismissed with no order as to costs

Authorities

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Legislation

  • Employment Actsections 49(3), 49(4)(f), 90, 19(1)(c), 54(5)
  • Labour Relations Actsections 54(5), 59(5)
  • Industrial Court Actsection 16
  • Industrial Court (Procedure) Rules, 2010rules 32(1), 35(5)
  • Civil Procedure RulesOrder 2 rule 4; Order 45 rule 1
  • Trade Disputes Actsection 11
  • Constitution of Kenya, 2010Articles 20, 36, 41(4)(c), 259

Cases cited (5)

  • Owners of the Motor Vehicle M.V. Lillians v Caltex Oil Kenya Ltd
    (1989) KLR 1
  • Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    Nairobi Civil Appeal No. 161 of 1999
  • Achola & Ar v Hongo
    (2004) 1 KLR 462
  • Kenya Union of Printing, Publishing, Paper Manufacturers & Allied Workers v Timber Treatment International Limited
    (2013) eKLR
  • KUDHEIHA v Impala Club, Nairobi
    Cause No. 1256 of 2010
Jurisdiction invoked
Section 16 of the Industrial Court Act and rule 32 of the Industrial Court (Procedure) Rules, 2010 (review jurisdiction)

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, "Simon Kiprotich Chepchowoi v Nandi Tea Estates Limited [2014] KEELRC 1425 (KLR)", Case Analysis (2014). Cause No. 763 of 2013 (review of judgment of 31 July 2014) - number not stated in ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1425/eng@2014-11-28

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