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ELRCOtherCause (number not stated in judgment) - former Industrial Court Cause 72 of 1995 award enforcement claim, Employment and Labour Relations Court· [2020] KEELRC 532 (KLR)

Thomas M. Nguti & 196 others v Kenya Railways Corporation [2020] KEELRC 532 (KLR)

Employment and Labour Relations Court
12 August 2020
3,586 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court deferred ruling on decades-old locomotive drivers' claims because the employer failed to produce the collective bargaining agreement and staff rules underpinning the dismissals.

What this practically means

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Executive summary

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The claimants, former locomotive drivers of Kenya Railways Corporation, sued to enforce an Industrial Court award in Cause 72 of 1995 (gazetted as Gazette Notice No. 4570 of 1998) which ordered a 25% salary increase and a separate scheme of service for locomotive drivers, and to challenge letters of 30th April 2003 forfeiting their appointments after they went on strike on 22nd April 2003. They sought salary arrears of Kshs.429,599,897.80 with interest, mandatory and permanent injunctions, declarations that the forfeiture letters were null and void, and costs. The Respondent maintained the award was in favour of the union, that it implemented the award through staggered salary reviews and allowances beyond its scope, and that the claimants absconded duty during an unlawful strike, justifying forfeiture of their appointments. The court framed two issues: the lawfulness of the termination and whether the Respondent implemented the award. Interim orders granted in 2003 were largely set aside on appeal, with the Court of Appeal on 8th May 2009 suspending the forfeiture letters for 12 months only. The court held that absent any extension, the claimants remained in employment entitled to salary and benefits until 8th May 2010. However, it declined to make final findings on the lawfulness of the termination or on implementation of the award, deferring both pending production of the relevant CBA and the Kenya Railways Personnel Regulations 1988 relied upon in the dismissal letters. No costs order was made.

Key legal issues

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01

Whether the termination of the claimants' employment was unlawful

Holding

Determination deferred; the court found it could not decide unlawfulness without the CBA and Personnel Regulations under which the dismissal letters were issued

Reasoning

The dismissal letters invoked Section 17 of the Employment Act, the Kenya Railways Corporation Act and Personnel Regulation G13(e), but the CBA governing discipline was never provided and the Personnel Regulations were not produced. Without these instruments the court could not assess whether participation in a strike amounted to lawful grounds for forfeiture of appointment. The court also noted the Court of Appeal had suspended the forfeiture letters for 12 months, meaning employment subsisted until 8th May 2010 absent extension.

p. 5
02

Whether the Respondent implemented the Industrial Court award in Gazette Notice No. 4570 of 1998

Holding

Determination deferred pending submission of the same documents; evidence was conflicting, with the claimants denying any 25% increase and the Respondent asserting the increments surpassed the award

Reasoning

CW1 testified no 25% increase was paid and no payslip reflected it, while RW1 admitted the award became part of the locomotive drivers' contracts but maintained the increments were staggered, renegotiated and implemented over time through CBAs and special notices. The court linked this question to the terminal benefits issue and declined to rule until the CBA and Personnel Regulations were produced.

p. 5

Legal principles established

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  • Where the Court of Appeal has suspended letters of forfeiture of employment for a limited period of 12 months and no extension of those orders is shown, the employees remain in employment and entitled to salary and benefits for that period.
  • A court cannot determine the lawfulness of termination without the governing contractual and regulatory instruments relied upon in the dismissal letters.

Court orders

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  1. 1.Determination of the issue of unlawfulness of the termination of the claimants' employment deferred pending production of the relevant CBA and the Kenya Railways Personnel Regulations 1988
  2. 2.Final determination on the issue of terminal benefits and implementation of the Industrial Court award of 4th May 1998 deferred pending submission of the said documents by the parties

Authorities

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Legislation

  • Trade Disputes Act (repealed)Sections 4, 5(1)(b), 16(6), 26, 34
  • Employment Act Cap 226 (repealed)Sections 5, 17, 41, 43
  • Kenya Railways Corporation Act Cap 397Section 79
  • Kenya Railways Personnel Regulations, 1988Section G13(e)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticles 159(2)(d), 48

Cases cited (7)

  • Railways Workers Union (K) v Kenya Railways Corporation, Industrial Cause 72 of 1995
  • Kenya Pipeline Company Limited v Glencore Energy (U.K.) Limited
    [2015] eKLR
  • Standard Chartered Bank v Intercom Services Ltd & 4 Others
  • Mary Wakhubi Wafula v British Airways PLC
    [2015] eKLR
  • Gibson Namasake v Linksoft Group Ltd
    [2018] eKLR
  • County Government of Uasin Gishu v Kenya National Union of Nurses
    [2014]
  • Robert Kazungu Kaingu & 139 Others v Cook ‘N’ Lite Limited
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (implied); the underlying dispute arises from an Industrial Court award under the Trade Disputes Act (repealed)

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, "Thomas M. Nguti & 196 others v Kenya Railways Corporation [2020] KEELRC 532 (KLR)", Case Analysis (2020). Cause (number not stated in judgment) - former Industrial Court Cause 72 of 1995 award enforcement claim, Employment and Labour Relations Court. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/532/eng@2020-08-12

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