Kenya Hotels & Allied Workers Union v Nairobi Safari Club [2020] KEELRC 1370 (KLR)
The bottom line
#Nairobi Safari Club must pay 68 former workers KShs.5.65 million in terminal dues after the court rejected claims that the 15-year-old award was time-barred.
What this practically means
#Executive summary
#Key legal issues
#Limitation and delay in executing the 2005 award
The claimant was not guilty of inordinate delay; the stay orders granted by the High Court remained in force until Nduma PJ's judgment on 28.04.2017, and the application for satisfaction of the decree was not barred by the Limitation of Actions Act
The court traced the chronology: the award was issued 12.08.2005, the respondent obtained a stay on 15.09.2005 which endured until the JR dismissal on 28.04.2017, after which the claimant promptly wrote to the respondent and filed the application. Because the application was for satisfaction of a decree within the suit, not a fresh suit, the 12-year limitation in section 4(4) did not apply, and no statutory bar was cited against it.
Interpretation of the reinstatement limb of the award
The reinstatement order required the respondent to offer reinstatement and each grievant to opt for it; the respondent refused to offer it and no grievant was shown to have opted for it, so the reinstatement limb collapsed
The court read the award as creating two cumulative conditions: the employer's opportunity to reinstate and the individual grievant's election. The respondent admitted in its replying affidavit that it declined to reinstate the grievants, and despite the claimant's 22.08.2005 letter asking which members had taken up reinstatement, there was no evidence of any election. The reinstatement limb therefore frustrated or collapsed.
Applicable CBA and quantum of terminal dues
The applicable CBA was the one in force at the time of the award; entitlements such as service charge, leave travelling allowance and public holidays did not accrue after summary dismissal; the respondent's tabulation in exhibit AM-7 totalling Kshs.5,650,761.95 for all 68 grievants was upheld
The award expressly directed payment of normal terminal dues in accordance with the CBA in force at the time, so later CBA variations could not be imported. The claimant raised no specific objections to the calculations in AM-7. Since the grievants were summarily dismissed on 27.12.2000, post-employment entitlements were excluded and the AM-7 tabulation was adopted as the measure of satisfaction.
Legal principles established
#- Execution in satisfaction of a decree filed within a pending suit is not a fresh suit, so the 12-year limitation period under section 4(4) of the Limitation of Actions Act for suits founded on a decree does not apply to such an application
- Delay caused by a stay of execution ordered by a court cannot be visited on the decree-holder as inordinate delay; time only began running when the stay lapsed with the 2017 judgment
- A reinstatement order conditioned on an offer by the employer and an election by the employee collapses if either step fails
Court orders
#- 1.In satisfaction of the award given on 12.08.2005 by Murtaza Jaffer J, the respondent shall pay to each grievant the normal terminal dues as particularised in exhibit AM-7 of the replying affidavit amounting to a sum of Kshs.5,650,761.95
- 2.The respondent to pay the money due by 01.07.2020 failing interest to run thereon at court rates from the date of the award until payment in full
- 3.The respondent to pay the applicant's costs of the application
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act and section 32 of the Employment and Labour Relations Courts Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Hotels & Allied Workers Union v Nairobi Safari Club [2020] KEELRC 1370 (KLR)", Case Analysis (2020). Cause (ELRC, Nairobi) – application dated 15.03.2019 arising from Industrial Court Cause 105 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1370/eng@2020-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.