DPL Festive Limited v Nyachae (Appeal E057 of 2023) [2024] KEELRC 483 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the collective bargaining agreement between the Appellant and BACOFOMAWU (K) applied to the Respondent notwithstanding his alleged supervisory position
- 2.Whether the Respondent proved appointment to act as Supervisor and entitlement to an acting allowance
- 3.Whether the award of overtime was justified on the evidence
- 4.Whether damages for breach of clause 12(b)(i)(ii) of the collective bargaining agreement were properly awarded
Key legal issues
#Applicability of the collective bargaining agreement to the Respondent
The CBA applied to the Respondent; he was entitled to its terms and conditions of service
The CBA copies produced contained no clause excluding any category of worker, and the ordinarily excluded workers are set out in the Industrial Relations Charter or recognition agreement, neither of which was before the court. The Respondent's pay slips showed the Appellant deducted and remitted monthly union subscriptions on his behalf, confirming unionisable status. Section 59(3) of the Labour Relations Act incorporates CBA terms into the contracts of all unionisable employees.
Acting appointment and acting allowance
The Respondent failed to prove he was appointed to act as Supervisor; the acting allowance award was erroneous
Clause 12(b)(ii) of the CBA required acting appointments to be in writing. No written acting appointment was produced. The pay slips showed his designation as Oven-man, and the unsigned Production Assessment Forms had doubtful evidential veracity. The trial magistrate therefore erred in law and fact in allowing the acting allowance head of claim.
Overtime
The award of overtime pay was upheld
The Respondent testified in cross-examination that he worked 12-hour shifts instead of 8 hours without compensation. The Appellant neither pleaded in response to the overtime claim nor led evidence on working hours or overtime payment, and offered no explanation for the 'extra days' pay' item in the pay slip. Considering section 10(3) of the Employment Act, 2007, the court would not fault the trial magistrate for allowing this head of claim.
Damages for breach of clause 12(b)(i)(ii) of the CBA
The damages award of Kshs 177,618/- was set aside as it lacked evidential foundation
Having found that the Respondent did not prove his acting appointment to the requisite standard, the premise for damages under clause 12(b)(i) and (ii) fell away. The trial magistrate awarded the sum without any explanation or justification, amounting to an error of law in granting a relief unsupported by evidence.
Legal principles established
#- On a first appeal, the court must re-evaluate the evidence, assess it and reach its own conclusions while making due allowance for not having seen or heard the witnesses
- Under section 59(3) of the Labour Relations Act, the terms of a collective bargaining agreement are incorporated into the contracts of all unionisable employees of the employer
- An employer who does not plead in response to a claim, or whose witness does not testify in response to the claimant's testimony, risks judgment on uncontroverted evidence
Court orders
#- 1.Award of acting allowance is vacated and or set aside
- 2.Award of damages is vacated and or set aside
- 3.The award of overtime pay is confirmed
- 4.Each party to bear costs of the Appeal; the Respondent to have costs before the Senior Principal Magistrates Court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrates Court
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction of the Employment and Labour Relations Court over appeals from the Senior Principal Magistrates Court (Memorandum of Appeal filed 18 October 2023); specific provision not stated in the judgment
Relief refused
#Confirmation of the award of acting allowance
The Respondent failed to prove a written acting appointment as required by clause 12(b)(ii) of the collective bargaining agreement
Confirmation of the award of damages for breach of clause 12(b)(i)(ii)
Damages had no evidential foundation once the acting appointment was not proved
Costs
Each party to bear costs of the Appeal; the Respondent to have costs before the Senior Principal Magistrates Court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Award of acting allowance is vacated and or set aside.
Award of damages is vacated and or set aside
For clarity, the award of overtime pay is confirmed.
Since the Appeal has only succeeded partly, each party to bear costs of the Appeal, the Respondent to have costs before the Senior Principal Magistrates Court.
This Court, therefore, finds that the Respondent was entitled to enjoy the terms and conditions of service outlined in the collective bargaining agreement.
The Respondent did not produce any written contract appointing him to act as a Supervisor.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DPL Festive Limited v Nyachae (Appeal E057 of 2023) [2024] KEELRC 483 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/483/eng@2024-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.