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ELRCDismissedNotice of Motion dated 9th June 2014 (arising from judgment delivered 10th March 2014)· [2015] KEELRC 856 (KLR)

Banking, Insurance & Finance Union (Kenya) v Co-operative Bank of Kenya Ltd [2015] KEELRC 856 (KLR)

Industrial Court of Kenya
13 March 2015
5,533 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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The Industrial Court refused Co-operative Bank's attempt to undo a re-engagement order because it had already re-hired the dismissed employees without seeking a stay first.

What this practically means

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Executive summary

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The Cooperative Bank of Kenya Limited, the respondent in the main cause, applied by Notice of Motion dated 9th June 2014 under Section 3 and 16 of the Industrial Court Act 2011, Rule 32 of the Industrial Court (Procedure) Rules 2010 and Order 9 Rule 9(b) of the Civil Procedure Rules for review of the judgment of 10th March 2014 which had ordered re-engagement of grievants dismissed from its employment. The bank argued that the judgment breached Sections 49(4)(c) and (d) of the Employment Act by ignoring the impracticability of re-engagement in a banking sector requiring trust and confidence, that the common law bar on specific performance of contracts of service was not honoured, and that the court lacked jurisdiction to order reinstatement more than three years after termination under Section 12(3)(vii) of the Industrial Court Act. The union opposed, contending the application was an abuse of process because the bank had already fully complied by re-engaging the grievants on 11th April 2014 without seeking a stay. The court framed four issues and held: the application met the review threshold; the jurisdictional objection failed because re-engagement is a distinct remedy from reinstatement and is not subject to the three-year cap; loss of trust and confidence had already been disproved at trial and the servitude argument failed as the bank is a large organization; and the review could not be granted because compliance had occurred and damages were neither prayed for nor proved. The application for review was dismissed with costs.

Key legal issues

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01

Threshold for review under Section 16 of the Industrial Court Act and Rule 32 of the Industrial Court (Procedure) Rules

Holding

The application met the threshold for review, but review was ultimately refused on the merits.

Reasoning

The applicant relied on Rule 32(1)(c) and (e), alleging the judgment breached Sections 49(4)(c) and (d) of the Employment Act and invoking sufficient reasons. The court accepted that the application was properly within the review jurisdiction since it alleged a breach of written law and sufficient grounds, but this only opened the door; the merits determined the outcome.

p. 9
02

Whether the court had jurisdiction to order re-engagement more than three years after termination

Holding

The court had jurisdiction; the three-year limit applies to reinstatement, not re-engagement.

Reasoning

Section 12(3)(vii) of the Industrial Court Act caps reinstatement orders at three years from dismissal, but re-engagement is a different remedy under Section 49(3) of the Employment Act, where the employee is engaged afresh on similar terms. The statutory cap therefore does not apply to re-engagement, and the want-of-jurisdiction argument founded on Owners of Motor Vessel 'Lilian S' was misplaced.

p. 9
03

Whether loss of trust and confidence and impracticability under Section 49(4)(c) and (d) warranted review

Holding

No; the judgment had already found no proven breach of trust and confidence, and the servitude argument failed.

Reasoning

The prior judgment made a specific finding that the employer failed to prove breach of trust and confidence. The bank is a large organization; the grievants did not work in close proximity with any person whose charges they faced, so reinstatement would not cast anyone into servitude, per Telkom Kenya Ltd v Paul Ngotwa. Kenya Airways was distinguishable because it involved redundancy of many employees, not misconduct dismissals.

p. 9
04

Whether the applicant was entitled to have the re-engagement order substituted with monetary damages

Holding

No; compliance had already occurred and damages were neither prayed for nor evidenced.

Reasoning

The grievants had been re-engaged with effect from 1st April 2014, before the review application was filed, and had benefited from the CBA salary review. Granting the application would effect a fresh termination. Damages could not be awarded because neither party had pleaded or proved them, and no stay of the re-engagement order had been sought.

p. 10

Legal principles established

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  • Re-engagement and reinstatement are distinct remedies; the three-year limit in Section 12(3)(vii) of the Industrial Court Act applies to reinstatement only, not to re-engagement
  • An employer that complies with a re-engagement order without first obtaining a stay cannot thereafter seek review to undo the compliance

Court orders

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  1. 1.Application for review of judgment dismissed
  2. 2.Costs to the respondent (claimant)

Authorities

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Legislation

  • Industrial Court ActSection 3
  • Industrial Court ActSection 12(3)
  • Industrial Court ActSection 12(3)(vii)
  • Industrial Court ActSection 16
  • Industrial Court (Procedure) Rules 2010Rule 32(1)
  • Civil Procedure Rules 2010Order 9 Rule 9(b)
  • Employment Act, 2007Sections 41, 43, 45, 46, 49(3), 49(4), 49(4)(c), 49(4)(d), 50
  • Constitution of KenyaArticle 47

Cases cited (13)

  • Kenya Airways Limited v Allied & Aviation Workers Union Kenya & 3 Others
    Civil Appeal No. 46 of 2013
  • New Zealand Education Institute v Board of Trustees of Auckland Normal Intermediate School
    [1994] 2ernz 414 (CA)
  • Raymond Clendon Lewis v Howick College Board of Trustees
    [2010] NZCA 320
  • Mary Chemweno Kiptui v Kenya Pipeline Company Limited
    [2014] eKLR
  • Lawrence Onyango Oduori v Kenya Commercial Bank Limited
    [2014] eKLR
  • Kenya Chemical and Allied Workers Union v National Cement Company Limited
    [2014] eKLR
  • Owners of Motor Vessel "Lilian S" v Caltex Oil (K) Ltd
    [1989] KLR 1
  • Gombe v Gombe
    [1951] (1) All England Law Reports 766
  • Telkom Kenya Ltd v Paul Ngotwa
  • Republican Press v CEPPWAWU
    [2007] SCA 121 [RSA]
  • Catherine Njoki Chege v Cooperative Bank of Kenya Limited
    Cause No. 732 of 2010
  • Bifu v Kipsigis Teachers SACCO Limited
    Cause No. 9 of 2012
  • HC Misc. Application No. 308 of 2009
Jurisdiction invoked
Section 16 of the Industrial Court Act 2011 and Rule 32 of the Industrial Court (Procedure) Rules 2010

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, "Banking, Insurance & Finance Union (Kenya) v Co-operative Bank of Kenya Ltd [2015] KEELRC 856 (KLR)", Case Analysis (2015). Notice of Motion dated 9th June 2014 (arising from judgment delivered 10th March 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/856/eng@2015-03-13

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