Kenya National Private Security Workers Union v G4s Kenya Limited & 2 others; Central Organisation of Trade Unions Cotu (K) & 4 others (Interested Parties) [2021] KEELRC 1102 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Proper construction of CBA clause 8.2 on overtime
The CBA and the Regulation of Wages (Protective Security Services) Order, 1998 are not contradictory; both calculate overtime on hours in excess of 52 per week
The court compared clause 8 of the CBA with paragraphs 6, 7 and 8 of the 1998 Order and Section 27 of the Employment Act, concluding there is no conflict: normal working hours are 52 spread over six days, and any hours beyond that attract overtime. The claim that words 'above' and 'weekly' were illegally inserted to deny workers overtime failed because the CBA was mutually negotiated, signed and registered, and the change predated the CBA.
Illegality of clause 8 of the CBA raised in submissions
A party cannot raise vitiating factors or illegality for the first time in submissions where none is pleaded
The Petitioner alleged illegality only in submissions. The court held that a registered CBA is a binding contract vitiatable only on mistake, fraud, misrepresentation, undue influence or duress, none of which was pleaded, relying on Josephat Kihia Muthoka v Kalu Works Limited. Courts cannot rewrite contracts freely entered into by parties.
Constitutional violation of grievants' rights
No constitutional violation established; the dispute is purely contractual
The court found that enforcing a private contractual entitlement cannot constitute a breach of Articles 27, 29, 41 or 47. The petition also failed the precision standard for constitutional petitions as contended by the 1st Respondent. The change in overtime computation was agreed upon with stakeholders and employees following the employer's financial restructuring before the CBA.
Legal principles established
#- A registered CBA is a binding contract that can only be vitiated on the known grounds of vitiation of contracts, none of which were pleaded
- The CBA and the Protective Security Services Order are consistent, both providing overtime for work beyond 52 hours per week
Court orders
#- 1.The Petition is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Article 23 of the Constitution; Employment and Labour Relations Court Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya National Private Security Workers Union v G4s Kenya Limited & 2 others; Central Organisation of Trade Unions Cotu (K) & 4 others (Interested Parties) [2021] KEELRC 1102 (KLR)", Case Analysis (2021). Petition dated 19th February 2020 (ELRC Petition, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1102/eng@2021-08-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.