Tailors and Textile Workers Union v African Cotton Industries Limited (Cause 955 of 2016) [2022] KEELRC 1349 (KLR)

Employment and Labour Relations Court

15 July 2022

BOByram Ongaya

607 words in judgment

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The bottom line

A Kenyan employment court refused to award termination damages because the union presented no witness, no written consent, and no proof of the opposing lawyer's authority.

What this practically means

Executive summary

The claimant union, through its Industrial Relations Officer Elisiphah Wanjiru Njuguna, filed a memorandum of claim on December 15, 2016 on behalf of its member Solomon Wanyama Saweenjah (the grievant) for unlawful, unfair and unjustified termination, claiming 3 months' notice pay, April salary and house allowance, service pay for 5 years, and 12 months' compensation, totaling Kshs.241,324.66 as itemised (though the claim itself erroneously stated a doubled figure of Kshs.387,906.46). No memorandum of response was on record, the claimant called no witness, and although Mr. Mathare appeared on numerous dates for the respondent, no material showed he had been appointed to act. At a May 2022 hearing the claimant's counsel submitted the matter had been consolidated with cause 953 of 2016 and that parties had reached a compromise, disputed only on the effective date of engagement, but the court found both files before it were recorded as cause 955 of 2016, there was no consolidation order, and the alleged consent was not on record. The court determined the suit by permitting the parties to file a consent subject to counsel's authority to act for the respondent being confirmed by a filed notice to act; holding that absent other material the effective date of service is the actual date the grievant started working; allowing adoption of the judgment in cause 953 of 2016 with modification; and directing that a decree issue. No monetary reliefs were awarded and no costs order was made.

Key legal issues

Whether the suit had been consolidated with cause No. 953 of 2016 as urged by the claimant's counsel

Holding

No consolidation order existed; both files before the court were recorded as cause No. 955 of 2016 and the claimant provided no consolidation order

Reasoning

The court examined the record and called for the file in cause No. 953 of 2016. It found both files before it bore the same number (955 of 2016) with the same grievant and memorandum of claim, and that cause 953 of 2016 between the same parties had no consolidation order. Counsel's assertion of consolidation was unsupported by any order on record.

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Whether the alleged compromise/consent between the parties could be acted upon

Holding

The consent was not on record and could not be given effect; parties were left at liberty to file a consent subject to confirmation of counsel's authority to act for the respondent

Reasoning

Counsel for both sides referred to a compromise, with the only dispute being the effective date of engagement. However, no consent appeared on the record and there was no material showing Mr. Mathare had been appointed to act for the respondent. The court therefore allowed the parties to file a consent, with a notice to act, and fixed the default effective date of service.

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Legal principles established

Where a party appears through counsel but no appointment is on record, any consent or compromise must be confirmed by the counsel's authority to act being filed with a notice to act
In the absence of other material, the effective date of service is the actual date the grievant started working for the respondent

Court orders

1.The parties may file a consent for recording by the Court subject to confirmation by counsel of authority to act for the respondent and by filing the notice to act alongside the consent, if any
2.In absence of any other material, the effective date of service is the actual date the grievant started working for the respondent
3.Parties at liberty to adopt this judgment to apply in cause 953 of 2016 with appropriate modification
4.A decree to issue accordingly

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction over the employment dispute (cause filed 2016)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Tailors and Textile Workers Union v African Cotton Industries Limited (Cause 955 of 2016) [2022] KEELRC 1349 (KLR)", Case Analysis (2022). Cause No. 955 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1349/eng@2022-07-15

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