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ELRCPartially AllowedCause No. 151 (N) of 2008· [2015] KEELRC 418 (KLR)

Communication Workers Union of Kenya v Telkom Kenya Limited [2015] KEELRC 418 (KLR)

Industrial Court of Kenya
8 October 2015
HWHellen Wasilwa
1,430 words in judgment
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The bottom line

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Kenya's Industrial Court ruled that a union's long delay does not block its Telkom Kenya severance claim from being heard, reviving the case with a 90-day deadline.

What this practically means

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Executive summary

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This ruling of the Industrial Court of Kenya (Wasilwa J) determined a Notice of Motion dated 12 January 2015 by the Communication Workers Union of Kenya seeking, among other things, a declaration that the court was properly moved notwithstanding the High Court judgment in Petition No. 269 of 2009, and findings that the claimants were entitled to severance pay calculated on the last salary earned and to unpaid accrued benefits arising from a Voluntary Early Retirement scheme. The background was an interim injunction granted by Rika J (as he then was) in 2008 restraining Telkom Kenya from closing its VER offer, which the High Court (Mumbi Ngugi J) declared null and void for violating constitutional rights, while directing that any outstanding issues in the cause be addressed by the newly constituted Industrial Court under Article 162 of the Constitution. The respondents opposed, arguing the union delayed six years, the VER scheme had been completed and closed, and the relationship was governed by contract and the CBA on an offer-and-acceptance basis. The court held that the High Court had not determined the substantive merits and that the union's delay was not a bar, since barring them would condemn them unheard and no striking-out application had been filed. The court found the application had merit and directed the applicants to move the court within 90 days to determine any pending issues in the main claim. Judgment was read on 8 October 2015.

Key legal issues

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01

Whether the Industrial Court retains jurisdiction over outstanding substantive issues after the High Court's constitutional judgment

Holding

The court held that the High Court restricted itself to constitutional rights issues and directed that outstanding issues be addressed by the newly constituted Industrial Court, so this court is properly moved

Reasoning

The High Court in Petition No. 269 of 2009 nullified the interim rulings on constitutional grounds but expressly left outstanding issues in the cause to the Industrial Court constituted under Article 162 of the Constitution. The substantive merits, including whether the VER package was fair and the correct salary base for computing the package, were never determined and therefore remain for this court.

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02

Whether the applicants' delay should defeat the claim

Holding

Delay of three years since the High Court judgment does not bar the applicants from being heard, particularly as no striking-out application was filed

Reasoning

The court acknowledged the applicants took about three years after the 2012 High Court judgment, and the respondents argued six years had passed with records possibly unavailable. The court nevertheless held that barring the applicants would deny them a hearing, and the respondents had not applied to strike out the main claim for want of presentation.

p. 3

Legal principles established

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  • Delay in pursuing a claim is not of itself a bar to being heard where no striking-out application has been filed, as it would condemn the party unheard

Court orders

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  1. 1.That the application dated 12/1/2015 is found to have merit
  2. 2.That the applicants do move this court within 90 days to determine any pending issues in the main case

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSection 3A
  • Employment ActNot specified
  • Labour Relations ActSection 57
  • Industrial Court ActSection 12
  • Labour Institutions Act No. 12 of 2007 (repealed)Section 12
  • Constitution of Kenya (former)Sections 70(b), 71, 73, 75, 76, 77(a), 77(9), 78, 79(1) and 84(1), 65
  • Constitution of Kenya (2010)Article 162
Jurisdiction invoked
Section 12 of the Industrial Court Act, Section 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules 2010, Section 57 of the Labour Relations Act and provisions of the Employment Act

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, "Communication Workers Union of Kenya v Telkom Kenya Limited [2015] KEELRC 418 (KLR)", Case Analysis (2015). Cause No. 151 (N) of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/418/eng@2015-10-08

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