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ELRCAllowedNairobi ELRC No. 421 of 2017· [2023] KEELRC 1555 (KLR)

Kenya Chemicals and Allied Workers Union v Milly Glass Works Limited (Employment and Labour Relations Cause 421 of 2017) [2023] KEELRC 1555 (KLR)

Employment and Labour Relations Court
21 June 2023
1,800 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenyan employers must implement a registered CBA immediately on their own — no fresh court order is needed — or risk directors' committal to civil jail.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Maureen Onyango, J) on a notice of motion dated June 6, 2022 by a union seeking orders compelling the Respondent employer to implement a Collective Bargaining Agreement as judged by the court on February 8, 2019 and registered on April 20, 2022, with consequential committal orders. The dispute history shows the CBA was negotiated following a Recognition Agreement ordered on December 15, 2013; contested clauses were determined by judgment of February 8, 2019; the employer refused to sign, was ordered to do so on December 1, 2020, was found in contempt on December 10, 2021, and its Managing Director was fined Kshs 5,000 on February 17, 2022, after which he signed but refused to implement the CBA. The Respondent opposed the application through grounds of opposition contending the court was functus officio and that implementation was a new cause of action requiring a fresh suit. The court rejected this: applying the Court of Appeal's definition of functus officio in Telkom Kenya v John Ochanda, it held the application did not re-open a final decision. Relying on section 59 of the Labour Relations Act, it held a registered CBA is automatically enforceable and its terms incorporate into employment contracts by operation of law, so no fresh suit is needed; indeed, a new suit would be res judicata. The Respondent's stance was an abuse of process. The application succeeded, and the court directed immediate implementation, permitted Notice to Show Cause against directors for committal to civil jail if not implemented within 30 days, and awarded costs to the Claimant.

Key legal issues

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01

Functus officio

Holding

The court is not functus officio; compelling implementation of the CBA does not re-open a finally decided matter but enforces existing orders

Reasoning

The court adopted the Court of Appeal's definition of functus officio and held that the present application does not re-open the earlier determination. The registration and implementation of the CBA are provided for in the same statutory sentence and cannot constitute different causes of action; a fresh suit would in fact be res judicata. The Respondent's demand that the union file a fresh suit despite its obligation to implement was an abuse of process.

p. 3
02

Effect of registration of a CBA under section 59 of the Labour Relations Act

Holding

The registered CBA is automatically enforceable and must be implemented by the employer without further court order

Reasoning

Section 59(5) compels an employer to implement a CBA upon registration, and section 59(3) incorporates its terms into the employment contracts of covered employees by operation of law. Insisting that the union return to court to enforce the law over a matter litigated since 2017 breaches section 59(5) and constitutes deliberate disobedience of the law and court orders.

p. 3
03

Abuse of court process

Holding

The Respondent's demand for a fresh suit to compel implementation of a registered CBA is an abuse of the court's process

Reasoning

The court found the Respondent's stance amounted to acknowledging a legal obligation to implement but refusing to do so unless separately ordered, forcing the union into unnecessary litigation. Section 3A of the Civil Procedure Act vests inherent powers to make orders necessary for the ends of justice or to prevent abuse of court process, justifying the orders sought.

p. 3

Legal principles established

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  • A collective agreement becomes enforceable and must be implemented upon registration by the Industrial Court, effective from the date agreed by the parties
  • Upon registration of a CBA, a claimant needs no further court order to enforce implementation; registration and implementation are one statutory scheme
  • Terms of a registered CBA are automatically incorporated into the contracts of employment of covered employees by operation of law

Court orders

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  1. 1.The Respondent is directed to immediately implement the Collective Bargaining Agreement as judged by the Court on February 8, 2019 and registered on April 20, 2022
  2. 2.Should the Respondent fail to implement the CBA within 30 days, the Claimant is at liberty to approach the court to issue a Notice to Show Cause against the directors and authorized officers for committal to civil jail
  3. 3.Should committal become necessary, the court will take into account the notoriety with which the Respondent has handled the matter
  4. 4.The Respondent shall pay the Claimant's costs of the application

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 20
  • Civil Procedure Actsection 3A
  • Labour Relations Actsection 59, including sections 59(3) and 59(5)

Cases cited (1)

  • Telkom Kenya limited v John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya limited)
    [2014] eKLR
Jurisdiction invoked
Inherent powers under section 3A of the Civil Procedure Act; section 59 of the Labour Relations Act; section 20 of the Employment and Labour Relations Court Act

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 Chemicals and Allied Workers Union v Milly Glass Works Limited (Employment and Labour Relations Cause 421 of 2017) [2023] KEELRC 1555 (KLR)", Case Analysis (2023). Nairobi ELRC No. 421 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1555/eng@2023-06-21

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