Simon Kiprotich Chepchowoi v Nandi Tea Estates Limited [2014] KEELRC 1425 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether limitation could be raised on review though never pleaded
The Court declined to entertain the limitation ground because the Respondent never pleaded it and cannot raise it after judgment on review.
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.
Whether award of wages for a period of non-work (partial reinstatement) lacks statutory basis
The Court acknowledged an apparent absence of statutory basis but held the challenge should be pursued on appeal, not review.
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.
Applicability of the CBA registered in 2009 to a 2008 separation
The CBA was enforceable despite registration issues because the parties mutually agreed its effective date and the employer failed in its statutory registration obligation.
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.
Scope of the Industrial Court's review powers under section 16 of the Industrial Court Act and rule 32 of its Rules
Review on grounds (c) and (d) is for glaring breaches of written law, not interpretative disagreements between judges.
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.
Legal principles established
#- 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
#- 1.The review motion is dismissed with no order as to costs
- Jurisdiction invoked
- Section 16 of the Industrial Court Act and rule 32 of the Industrial Court (Procedure) Rules, 2010 (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.