Amalgamated Union of Kenya Metal Workers v Associated Motors Limited (Cause 160 of 2019) (Employment and Labour) [2020] KEELRC 153 (KLR)
The bottom line
#A Kenyan employer lost its bid to delay paying union arrears because courts cannot stay a refusal, and employers must prove hardship with evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution pending appeal could issue in respect of the Ruling of 7 August 2020
Stay was declined because the application repeated grounds already rejected on 7 August 2020, and the orders then made were a negative order incapable of stay
The Court found the Respondent was attempting to obtain orders already refused on 7 August 2020 and relied on identical grounds (COVID-19 effects on business). Additionally, the ruling of 7 August 2020 was a negative order which does not lend itself to stay pending appeal, unlike a judgment granting positive relief. The Respondent also failed to exhibit any evidence, such as letters or emails, showing it had approached the Union for social dialogue in good faith.
Whether the Union's computations of arrears should be adopted and the judgment of 24 April 2020 enforced
The Court directed joint computations within set timelines, with the Union's computations to be deemed correct in default, because the employer had failed in its primary obligation to compute arrears and showed no bona fides
The judgment of 24 April 2020 gave the Respondent 60 days to pay arrears but it made no payments and did not compute the arrears until the Union's application. The Respondent's COVID-19 explanation was unsupported by any documentary evidence and was found to be an afterthought. It merely poked holes in the Union's computations without placing its own before the Court, and the Court accepted the Union's argument that the Respondent was on a mission to keep litigation alive, contrary to the ethos of expeditious and proportionate determination of employment disputes.
Legal principles established
#- A negative order (refusal to grant orders) is not capable of stay of execution pending appeal
- The primary obligation to compute and pay arrears ordered by the Court rests on the employer, not the union or employees
- A party who files computations only when opposing the other side's application, and merely pokes holes in the other side's figures without tendering its own, forfeits the benefit of the doubt
Court orders
#- 1.The Respondent's Motion for stay of implementation and/or execution of the Ruling of 7 August 2020 is declined
- 2.The Respondent to sit with the Union and agree on joint computations of arrears within 15 days
- 3.The joint computations to be filed in Court within 21 days
- 4.In default, the computations by the Union to be deemed the correct computations and adopted for purposes of execution
- 5.Respondent to bear costs of the Union's motion
- Jurisdiction invoked
- Employment and Labour Relations Court Act and the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amalgamated Union of Kenya Metal Workers v Associated Motors Limited (Cause 160 of 2019) (Employment and Labour) [2020] KEELRC 153 (KLR)", Case Analysis (2020). Cause No. 160 of 2019 (Originally Mombasa Cause No. 485 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/153/eng@2020-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.