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ELRCPartially AllowedELRC Cause at Mombasa (Amended Memorandum of Claim dated 29th March 2017; Notice of Motion dated 26th July 2022)· [2023] KEELRC 64 (KLR)

Dock Workers Union v Kenya Ports Authority (Cause 755 of 2015) [2023] KEELRC 64 (KLR)

Employment and Labour Relations Court of Kenya
19 January 2023
3,200 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Claimant union, on behalf of 96 Grievants summarily dismissed by the Respondent in September 2015, sought a declaration of unfair dismissal, reinstatement or alternatively twelve months' compensation, damages and costs. The dispute was referred to Court Annexed Mediation, culminating in a Mediation Settlement Agreement dated 19th October 2021 providing for payment of pension benefits, compliance with pension regulations, exclusion of reinstatement, and each party bearing its own costs. The Claimant then moved the Court to adopt the Agreement with a variation of clause 3, contending that the words 'but plaintiffs who apply for reinstatement and qualify will be afforded a fair hearing', agreed on 22nd July 2021, were accidentally omitted from the re-executed Agreement of 19th October 2021. The Respondent opposed, maintaining that further negotiations between Advocates produced the shorter clause 3, that no executed Agreement of 22nd July 2021 exists, and that the Court has no power to re-write a binding contract. The Court found the Agreement of 19th October 2021 duly and freely executed and binding, that no vitiating factor was proved, and that it could not vary it. However, since the executed Agreement nowhere stated it was in full and final settlement, the Claimant's unfair dismissal claim and the alternative claim for compensation remain unresolved. The Court adopted the Agreement as an order of the Court without variation, granted parties liberty to pursue any claims not settled by it, and ordered each party to bear its own costs of the application.

Key legal issues

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01

Whether the Court could vary the executed Mediation Settlement Agreement to restore the allegedly omitted fair-hearing words in clause 3

Holding

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

Reasoning

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.

p. 6
02

Whether the settlement disposed of all claims in the suit

Holding

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

Reasoning

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.

p. 6
03

Whether reinstatement remained a live remedy

Holding

Reinstatement, which the parties agreed would not be considered, is statutorily barred as more than three years had elapsed since the dismissals

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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. 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. 3.Each party to bear its own costs of the application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159
  • Employment and Labour Relations Court ActSection 3
  • Employment and Labour Relations Court ActSection 12(2)(vii)
  • Civil Procedure ActSection 59B(1)(a)(b) & (c)
  • Civil Procedure RulesOrder 51 Rule 10
  • Judiciary of Kenya Practice Directions on Court Annexed Mediation, 2018Rule 8

Cases cited (3)

  • National Bank of Kenya Limited -vs- Pipe Plastic Samkolit (K) Ltd & Another
    [2002] E.A 505
  • Re-estate Of Oyosi Oyuayo (deceased)
    [2021] eKLR
  • LKM -VS- LWK
    [2022] eKLR
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

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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, "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.