Dock Workers Union v Kenya Ports Authority (Cause 755 of 2015) [2023] KEELRC 64 (KLR)
The bottom line
#Kenya's employment court refused to add words to a signed mediation settlement, but let the 96 dismissed workers pursue their unresolved unfair dismissal claims.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court could vary the executed Mediation Settlement Agreement to restore the allegedly omitted fair-hearing words in clause 3
The Court cannot re-write the contract; the Agreement of 19th October 2021 was duly and freely executed and is binding, with no vitiating factor established
The Claimant's General Secretary freely signed the Agreement of 19th October 2021 and did not deny the Respondent's assertion that further discussions between the parties' Advocates after 22nd July 2021 may have mutated clause 3. No signed copy of a 22nd July 2021 Agreement was exhibited; only an unsigned draft. Fraud, misrepresentation, coercion and undue influence, the grounds that would vitiate a contract, were none of them established.
Whether the settlement disposed of all claims in the suit
The executed Agreement did not state it was in full and final settlement; that statement appears only in the Mediator's Report, which references an Agreement executed on 22nd July 2021 that is not on record
The Mediator's Report refers to a Mediation Settlement Agreement executed on 22nd July 2021, but no such executed Agreement exists on record and both parties deponed as much. The Agreement of 19th October 2021 addressed pension benefits, reinstatement and costs only, leaving the pleaded unfair dismissal claim and alternative compensation unresolved and open for determination.
Whether reinstatement remained a live remedy
Reinstatement, which the parties agreed would not be considered, is statutorily barred as more than three years had elapsed since the dismissals
The Grievants were dismissed on diverse dates in September 2015, over seven years before the ruling. Under Section 12(2)(vii) of the Employment and Labour Relations Court Act, reinstatement must be ordered within three years of dismissal. The Court observed the parties may have taken account of this when agreeing the settlement terms.
Legal principles established
#- Once a mediation settlement agreement is signed it is contractually binding and cannot be amended, varied or set aside except by subsequent agreement of the parties or on grounds that would vitiate a contract
- A court of law cannot re-write a contract between parties; parties are bound by its terms unless coercion, fraud or undue influence are pleaded and proved
- The Court's power to order reinstatement of a dismissed employee is statutorily limited to three years from the dismissal
- Where the executed settlement agreement does not state it is in full and final settlement of all claims, parties remain at liberty to pursue claims not addressed in it
Court orders
#- 1.The Mediation Settlement Agreement dated 19th October 2021 is adopted as an order of the Court without any variation or inclusion of words not captured in the Agreement as executed
- 2.Parties may move the Court for determination of any pleaded claim or relief sought and not settled or resolved vide the duly executed Mediation Settlement Agreement executed by the parties and their respective Advocates on 19th October 2021
- 3.Each party to bear its own costs of the application
- Jurisdiction invoked
- Article 50 of the Constitution of Kenya 2010, Section 3 of the Employment and Labour Relations Court Act and Order 51 Rule 10 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dock Workers Union v Kenya Ports Authority (Cause 755 of 2015) [2023] KEELRC 64 (KLR)", Case Analysis (2023). ELRC Cause at Mombasa (Amended Memorandum of Claim dated 29th March 2017; Notice of Motion dated 26th July 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/64/eng@2023-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.