Kenya Union of Commercial, Food and Allied Workers v Gititu Coffee Growers Co-operative Society Limited [2021] KEELRC 1119 (KLR)
The bottom line
#A Kenyan court allowed a union to pursue a 2003 award against Gititu Coffee co-operative, ruling the claim was filed in time and must be satisfied.
What this practically means
#Executive summary
#Key legal issues
#Whether the notice to show cause was statute barred under Section 4(4) of the Limitation of Actions Act
Not statute barred; limitation runs from the default date (31st December 2008), so the 12-year period lapsed on 31st December 2020 and the application of 6th December 2019 was filed in time.
The award required payment of Kshs.600,000 by 31st December 2003 and the balance in five yearly instalments ending 31st December 2008. Section 4(4) provides that where a judgment directs payment at recurring periods, limitation runs from the date of default. The last instalment would have fallen due on 31st December 2008, so limitation would expire on 31st December 2020. The notice was taken out on 6th December 2019, within the period, and was therefore not barred.
Whether the Claimant, as distinct from individual grievants, was entitled to execute the decree
Yes; the Claimant filed the claim, was awarded the decree, and is the proper party to execute. The individual employees were not parties to the suit.
The judgment ordered payment to the Claimant and did not direct payment to individual employees. None of the individual employees was a party to the proceedings and none could individually move the court for payment. The Claimant, having been the claimant and thus the decree holder, had the right to execute. The Respondent's assertion that dues were payable to individual employees could not defeat execution by the Claimant.
Whether the MoU splitting the Respondent's liabilities with Nyakiri Coffee Farmers Co-operative Society operates as a defence to execution
No; the MoU is undated, internal to the Respondent, not binding on the Claimant, and not referenced in the judgment; only the Respondent is liable under the decree.
The MoU annexed as DNK1 bears no date, so it cannot be determined whether it pre- or post-dates the judgment, and the Claimant was not a party to it. The judgment makes no reference to the MoU. It is therefore an internal document binding only on the parties thereto and cannot be used as a defence. Execution of the decree lies only against the Respondent, against whom judgment was entered.
Whether the Respondent satisfied the decretal sum
No; the Respondent failed to demonstrate payment, produced no breakdown shared with the Claimant, and a grievant deponed to partial payment only.
The payment schedules allegedly made by the Respondent and Nyakiri were never shared with the Claimant, yet the judgment required compliance with the ordered payment mode and it was incumbent on the Respondent to obtain the Claimant's approval of part-settlement. No breakdown of payments to each grievant was given, and Joseph Kabera Cimbi swore he received only Kshs.101,100 of his Kshs.272,120.95 dues, leaving Kshs.171,020.95 outstanding.
Legal principles established
#- Where a judgment directs payment of money at recurring periods, limitation under Section 4(4) of the Limitation of Actions Act runs from the date of default in making the payment, not from the date of judgment.
- A claimant who obtained the judgment is the proper entity to execute the decree; individual beneficiaries who were not parties cannot move the court for payment.
- An internal Memorandum of Understanding transferring part of a judgment debtor's liabilities to a third party does not bind the decree holder and cannot be pleaded as a defence to execution.
Court orders
#- 1.It is directed that the Respondent show cause why execution should not issue against it as per notice to show cause dated 6th December 2019
- 2.A date for parties to appear before the Deputy Registrar for the notice to show cause to be given at the time of delivery of the ruling
- 3.Judgment/ruling to be delivered through video conferencing or via email pursuant to COVID-19 directions of the Chief Justice
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction to enforce its own decree issued in an award (original jurisdiction; the award was delivered by the Industrial Court on 18th November 2003)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Gititu Coffee Growers Co-operative Society Limited [2021] KEELRC 1119 (KLR)", Case Analysis (2021). Notice to Show Cause dated 6th December 2019 (arising from Award delivered 18th November 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1119/eng@2021-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.