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ELRCPartially AllowedCause (ELRC, Nairobi) – application dated 15.03.2019 arising from Industrial Court Cause 105 of 2004· [2020] KEELRC 1370 (KLR)

Kenya Hotels & Allied Workers Union v Nairobi Safari Club [2020] KEELRC 1370 (KLR)

Employment and Labour Relations Court of Kenya
6 March 2020
2,566 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The claimant union applied by notice of motion under section 3A of the Civil Procedure Act and section 32 of the Employment and Labour Relations Courts Act for interpretation and clarification of an award made by the Industrial Court (Jaffer J, 12.08.2005) in Cause 105 of 2004, seeking reinstatement of 68 grievants or, alternatively, computation of their terminal dues. The respondent opposed, arguing the execution was time-barred after 12-13 years, that the claimant's computation based on later CBA variations and constructive reinstatement was wrong, and tabulating dues of Kshs.5,650,761.95 under the CBA in force at the award date. The court found no inordinate delay: the High Court's stay of execution endured until Nduma PJ dismissed the respondent's judicial review on 28.04.2017, and an application for satisfaction of a decree within the suit is not a fresh suit, so section 4(4) of the Limitation of Actions Act did not apply. On interpretation, the court held the reinstatement limb required the respondent to offer reinstatement and each grievant to elect it; the respondent admittedly declined to reinstate, and no grievant was shown to have opted for reinstatement, so that limb collapsed. The alternative limb - normal terminal dues under the CBA in force at the time of the award - alone survived, defeating the claimant's constructive-reinstatement computation over 162 months. The court upheld the respondent's exhibit AM-7 tabulation, excluded post-dismissal entitlements such as service charge and leave travelling allowance, and ordered payment of Kshs.5,650,761.95 by 01.07.2020, failing which interest would run at court rates from the date of the award. The claimant was awarded costs of the application; costs of the main suit had already been conclusively dealt with in the 2017 judgment.

Key legal issues

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01

Limitation and delay in executing the 2005 award

Holding

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

Reasoning

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.

p. 2
02

Interpretation of the reinstatement limb of the award

Holding

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

Reasoning

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.

p. 3
03

Applicable CBA and quantum of terminal dues

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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. 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. 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

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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, "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.