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ELRCPartially AllowedNot stated in extract (claimant's application dated February 9, 2023; respondent's application dated February 9, 2023)· [2023] KEELRC 1393 (KLR)

Kenya Shipping, Clearing and Warehouses Workers Union v Sunripe (1976) Limited (Employment and Labour Relations Cause 2324 of 2017) [2023] KEELRC 1393 (KLR)

Employment and Labour Relations Court
2 June 2023
1,550 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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This first-instance ruling of the Employment and Labour Relations Court at Nairobi, delivered by Byram Ongaya, Principal Judge, on June 2, 2023, determined cross-applications dated February 9, 2023 arising from a judgment of August 17, 2018 awarding terminal dues to 103 employees, as elaborated by a ruling of July 26, 2019 (one month's notice pay, leave pay capped at three years, and one month's ex-gratia, tabulated with Labour Officer assistance). The respondent sought review of the judgment on alleged new material that the 29 remaining grievants had not instructed the union, were not employees or had resigned, and asked that the judgment be declared fully settled and the workers summoned. The claimant union sought adoption of the tabulated schedule and payment of Kshs 1,808,331.00 to the 29 grievants with interest. The Court dismissed the respondent's application, holding that having purported to appeal, the respondent was precluded from seeking review; that no fresh evidence which with due diligence could not have been obtained at the hearing was shown; and that the union's authority to sue was inherent, express by membership and implied by its statutory role. The claimant's application partially succeeded: the schedule marked Exhibit Soon 1 was adopted, and the respondent was ordered to pay each of the 29 grievants their dues by July 1, 2023, failing which interest at court rates would run from the date of the ruling. The prayer that payment be made through the union was declined because the 2018 order that payments be made directly to employees remained in force. Each party was ordered to bear its own costs of the applications.

Key legal issues

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01

Whether review is available to a party who has appealed the judgment

Holding

Review is barred; the respondent's election to appeal precludes it from seeking review

Reasoning

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.

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02

Whether the alleged fresh evidence justified review

Holding

No; the alleged facts (lack of instructions, non-employment, resignation) were capable of being raised at the hearing with due diligence

Reasoning

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.

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03

Union's authority to represent the grievants

Holding

The union's authority was inherent, express by membership and implied by its statutory role

Reasoning

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.

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04

Adoption of the Labour Officer's schedule of terminal dues

Holding

The schedule was unchallenged and was adopted; payment to be made directly to the 29 grievants by July 1, 2023

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The respondent's application dated February 9, 2023 is declined and dismissed
  2. 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. 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. 4.Each party to bear own costs of the applications

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Court (Procedure) RulesRule 17
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 159
  • Employment ActSection 40(1)(f)
  • Civil Procedure ActSections 1A, 1B, 3A, 80
  • Civil Procedure RulesOrder 42 rule 6(1) and (2)(a); Order 45 rule 1(1)(a) and (b)

Cases cited (1)

  • NAI Civil Application No. 315 of 2019 (Court of Appeal)
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

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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 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.