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ELRCPartially AllowedCause No. 822 of 2013 (consolidated with Cause No. 1149 of 2014)· [2021] KEELRC 1776 (KLR)

Kenya Scientific Research International Technical and Institutions Workers Union v Sana Industries Limited [2021] KEELRC 1776 (KLR)

Employment and Labour Relations Court
30 April 2021
MOMaureen Onyango
2,809 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court awarded a union Kshs.1,040,490 for only 11 of 148 workers because most were casuals and the union never proved who else qualified.

What this practically means

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Executive summary

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This ruling delivers final judgment following a directions judgment of 17th December 2018 by Merete J., which awarded the Claimant one month's salary in lieu of notice and eight months' salary as compensation for unlawful termination, and directed the Commissioner of Labour to compute the grievants' dues based on gross salaries at termination, with costs to the Claimant. The judgment was transmitted to the Labour Commissioner, who appointed Mr. G. I. Tsimuli to prepare the tabulation. The Commissioner found that most grievants were paid daily wages and had no gross salaries for computation, and tabulated dues for only eleven monthly-paid employees, totalling figures subject to statutory deductions under Section 49(2) of the Employment Act. Both parties rejected the report. The Claimant argued the Commissioner exceeded his mandate by assessing eligibility rather than computing for all 94 grievants; the Respondent said the judgment did not name the beneficiaries. The Court held that the earlier judgment referred to 94 unidentified grievants and deliberately left their identification to the Commissioner. Reviewing the pleadings, the Court found 148 grievants across the consolidated causes, most on daily wages with no prayer for conversion to permanent terms under Section 37(1) of the Employment Act, while several monthly-paid employees were claimants in the separately consolidated Cause 1273 of 2013 or unproven. The Court adopted the Commissioner's tabulation and entered final judgment for the eleven named grievants in the total sum of Kshs.1,040,490/=, with costs of Kshs.100,000/= to the Claimant, prosecuted in person by its Secretary General. Judgment was delivered virtually at Nairobi on 30th April 2021 under COVID-19 directions.

Key legal issues

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01

Adoption of the Labour Commissioner's report

Holding

The Court adopted the Commissioner's tabulation for the 11 monthly-paid grievants and entered final judgment accordingly

Reasoning

Both parties rejected the report, but the Claimant failed to identify the 94 grievants it said were entitled to the award. The pleadings showed most grievants were daily-rated casuals with no prayer for conversion to permanent terms, while some monthly-paid employees were claimants in a separate consolidated cause or unproven. The Court therefore found the Commissioner's tabulation for the 11 identified monthly-paid grievants the only justified basis for final judgment.

p. 7
02

Scope of the Commissioner's mandate

Holding

The Commissioner was entitled to identify which grievants qualified, since the judgment did not name them

Reasoning

The Court found the original judgment referred to 94 grievants who were not identified by name, and its directions to the Commissioner did not specify the number of grievants. The Court concluded it had deliberately left identification of eligible grievants to the Commissioner in consultation with the parties, so the Commissioner's finding that only monthly-paid employees had gross salaries for computation did not exceed his mandate.

p. 4

Legal principles established

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  • Where no appeal or review is pursued and both parties reject the Labour Commissioner's report, the Court may itself tabulate the award and enter final judgment
  • Casual employees paid daily wages cannot be assumed entitled to notice pay and compensation absent a prayer for conversion to permanent terms under Section 37(1) of the Employment Act

Court orders

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  1. 1.The tabulation filed by the Labour Commissioner is adopted by the Court
  2. 2.Final judgment entered for the Claimant in favour of the 11 named grievants in the total sum of Kshs.1,040,490/=
  3. 3.Costs of Kshs.100,000/= awarded to the Claimant, inclusive of all disbursements and reasonable expenses of prosecution

Authorities

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Legislation

  • Employment ActSection 49(2)
  • Employment ActSection 37(1)
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 48
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment causes (Employment Act); execution/computation of judgment award directed to the Commissioner of Labour under the judgment dated 17th December 2018

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 Scientific Research International Technical and Institutions Workers Union v Sana Industries Limited [2021] KEELRC 1776 (KLR)", Case Analysis (2021). Cause No. 822 of 2013 (consolidated with Cause No. 1149 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1776/eng@2021-04-30

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