Kenya Shipping, Clearing and Warehouses Workers Union v Sunripe (1976) Limited (Employment and Labour Relations Cause 2324 of 2017) [2023] KEELRC 1393 (KLR)
The bottom line
#An employer's bid to overturn a 2018 terminal dues award failed, and 29 former workers must be paid directly by July 1, 2023 or face court-rate interest.
What this practically means
#Executive summary
#Key legal issues
#Whether review is available to a party who has appealed the judgment
Review is barred; the respondent's election to appeal precludes it from seeking review
The Court held that having filed a notice of appeal (and obtained Court of Appeal directions in NAI Civil Application No. 315 of 2019 on extension of time), the respondent elected the appellate route. That election exhausted the Court's review jurisdiction; the review jurisdiction could not be used as an alternative or supplementary remedy to an appeal.
Whether the alleged fresh evidence justified review
No; the alleged facts (lack of instructions, non-employment, resignation) were capable of being raised at the hearing with due diligence
The Court found no fresh evidence which with due diligence could not have been made available at the hearing. Allegations that the 29 grievants had not given instructions, were not employees, or had resigned were matters the respondent could have raised during the suit; raising them afterwards was an afterthought and did not satisfy the review threshold.
Union's authority to represent the grievants
The union's authority was inherent, express by membership and implied by its statutory role
The Court held that as the named claimant, the union's authority to sue for members' benefit is inherent; membership made the authority express, and the statutory role of a union to protect workers' rights and pursue employers on contracts of service made it implied. No special individual instructions were necessary.
Adoption of the Labour Officer's schedule of terminal dues
The schedule was unchallenged and was adopted; payment to be made directly to the 29 grievants by July 1, 2023
The respondent did not dispute the schedule of payments tabulated by the Labour Officer, so the Court adopted it. As to mode of payment, the earlier express order that payments be made directly to employees and not through the union remained in force and was not varied, so payment to the union was declined.
Legal principles established
#- A party who opts to appeal a judgment is precluded from simultaneously seeking its review
- A trade union's authority to sue for the benefit of its members is inherent, express and implied and requires no special instructions from individual members
Court orders
#- 1.The respondent's application dated February 9, 2023 is declined and dismissed
- 2.The schedule containing 29 former employees' terminal benefits tabulations marked as Exhibit Soon 1 is adopted by the Court and incorporated in the order
- 3.The respondent to release to each of the 29 grievants their respective dues by July 1, 2023, failing which interest to be payable at Court rates from the date of the ruling until full payment
- 4.Each party to bear own costs of the applications
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act, 2011; Rule 17 of the Employment and Labour Court (Procedure) Rules, 2016; Articles 41 and 159 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Shipping, Clearing and Warehouses Workers Union v Sunripe (1976) Limited (Employment and Labour Relations Cause 2324 of 2017) [2023] KEELRC 1393 (KLR)", Case Analysis (2023). Not stated in extract (claimant's application dated February 9, 2023; respondent's application dated February 9, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1393/eng@2023-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.