TRANSPORT & ALLIED WORKERS’ UNION v KENYA BUS SERVICES LTD (Cause 98 of 2002) [2004] KEELRC 7 (KLR)

26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 20201022 2o2o1027 20201028 20201043 20201064 20201066 20201068 20201069 21211034 20201075 20201081 20201085 20201087 20201093 41211082 20201116 20201119 20201129 20201144 20201146 20201147 21211097 21211141 21211319 21211147 21211157 21211159 20201179 20201184 21211174 20201166 20201187 20201190 20201191 20201194 20201198 20201200 20201203 30300644 41211206 20201210 20201212 20201219 20201227 20201228 50201223 20201215 20201232 20201223 20201238 20201240 20201243 20201247 20201250 21211247 21211315 20201262 20201263 30300648 47211273 21211277 22211266 20201284 20201287 20201292 21212431 30600356 Loyford Kaburu Rachi. David Ndolo Mulonzi. Sylvester Omondi Onyisi. Josephat Kibanya Mbuchi. Dickson Mwendwa Kakunyi. Fabian Ouma Rabach. Titus Tatua Gacuce. Tobias Otieno Shem. Kenneth Maina Muruiki. Joel Nyabuto Michuka. Edward Mwangi Wairati. Samuel Otieno Odero. Christiano Ingati Itiema. John Kinyua Mwaniki Njoroge. Paulkimani Njoroge. Wycliffe Philip Makungu. Fredrick Bwire Okome. Dan Ashiema. Francis Maina Lusala. Philip Kangutu Kisuna. John Mwaniki Maina. Joseph Irungu Mugo. Johnstone Luke Okoji. Daniel Ochieng Obiero. James Mirie Mwenje. John Mosoti Orangi. Fredrick Njogu Kanja. Ngei Kang’we. Patrick Lumumba Mejor. Fredrick Kakula Kyula. Kangethe Karanu. William Muendo Mutisya. Peter Mulama Liyenga. Morrice Muia Makau. Aggrey Ikhulu Shisavo. Stephen Mugenda Mwangi. Carolus Amolo Ochiayo. Allani Musanga Kehodo. Bernard Kipketer Kemoi. Joel Maundu Thambu. William Gathu Kurururo. Jame Emisico Otenyo. Kiema Luma. Charles Kamau Njiri. Henry Kuria Mwangi. Wilson Ouya Midigo. Patrick Maina Kimani. Silas Aduogo Olweny. Peter Maina Ngunjiri. Henry Odhiambo Moyi. Chrispinus Ochieng Juma. Harrison Ngungu Nthenge. Barnabas Mutua Wambua. Kennedy Nthenge Kisese. Livingstone Gachunu Cunji. David Nyoro Wamweya. Michael Ochieno Osuri. Joshua Kisee Nyamai. Airam Ngaira Shipendi. Martin Ndungu. Bonifas Arodi Oliewo. Francis Ngigi Njoroge. Livingstone Opwondi Kuta. Ernest Phili Walieli. Cypian Ambani. David Wabomba Waswa. Aloice Oloo Molla.

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93. 30600359 94. 21211293 95. 21211302 96. 20201317 97. 20201321 98. 20201318 99. 2121283 100. 20201323 101. 35350487 102. 21211337 103. 21211343 104. 21211335 105. 21211336 106. 2121344 107. 20201332 108. 20201337 109. 20201340 110. 20201348 111. 20201348 112. 20202355 113. 20201358 114. 20201359 115. 21211359 116. 2121353 117. 20201394 118. 20201364 119. 20201370 120. 20201372 121. 20201380 122. 20201384 123. 20201386 124. 20201389 125. 21211367 126. 21211367 127. 30300498 128. 20201398 129. 20201401 130. 20201405 131. 20201409 132. 20201410 133. 20201411 134. 30300656 135. 31211397 136. 21211384 137. 21211395 138. 21211394 139. 20201419 140. 20201424 141. 20201426 142. 20201427 143. 20201429 144. 20201433 145. 20201434 146. 20201438 147. 20201443 148. 20201444 149. 20201445 150. 21212676 151. 20201449 152. 20201452 153. 20201458 154. 20201463 155. 21211434 156. 21211435 157. 21211429 158. 20201469 159. 20201480 Thomas Kituu. John Maina Kariuki. Josephat Njau Mungai. Fredrick Ojuka Olwalo. George Oigo Winde. Maurice Yongo Odunga. Francis Wamalwa Kibeti. Paul Muthama Maingi. Susan Wairimu Kimani. Ignatius Njagi Munene. Samuel Mbugua Njoroge. Patterson Mutisya Mathei. Francis Nderitu Mariga. Samuel Kipkirui Koskei. Ishmael Muriithi Ndege. Enock Sambayi Mikabwa. Joseph Wambua Musembi. Stephen Kitenge Ndangili. Ndeto Muli. James Kingola Kanungu. Collins Okoth Amol. Edward Aletso Muanyasi. Johanna Njoroge Nganga. Charles Monori Mogaka. Samson Abuoro Odende. Naphtari Ongore Osida. Richard Jaoko Odongo. Maurice Otieono Olando. Wando Joseph Onesmus. Ayub Imbirah Osinde. Joseph Okone Silvanus. Daniel Kamau Njoroge. Joseph Muchini Kungu. Joseph Kamau Mahui. Stephen Ndiritu Irungu. Francis Shimoli Alukwe. Daniel Sewe Okito. Walter Muthenya Munyoki. Harrison Okerio. Daniel Kioko Kyuli. Boniface Wambua Mwangangi. Danson Kiambuthe Muiruri. Alica Njeru Marete. Philip Muchai Kyai. John Njenga Kinyanjui. William Apili Ondieki. Henry Ouma Kola. Naboth Absalom Imende. Hezron Wango Ndung’u. Dennis Mugambi Mutiga. Jackson Muli Mwanthi. Fredrick Muthe Maguu. Boniface Maliti Malungu. Richard Ochola Okano. Josephat Shikokoti Ongaya. Charles Muchiri Kiboru. Henry Chege Kimani. Paul Muteti Nthei. Henry Agesa. Michael Mbatha Kimeu. Musyoka Mainga. John Ngaira Ashimene. Samson Gichunge Kamangu. Kimondu Munyao Kisuna. Bernard Kisilu Kimii. Nzambwa Mboya Emmanuel. Elijah Kaberia Laichema.

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160. 20201481 161. 20201482 162. 20201486 163. 20201464 164. 21211425 165. 41211428 166. 20201494 167. 20201499 168. 21211009 169. 303000661 170. 20201501 171. 35350144 172. 21211440 173. 21211445 174. 21211471 175. 20201509 176. 20201512 177. 20201515 178. 2020 1520 179. 20201525 180. 30300665 181. 20201528 182. 20201530 183. 20201531 184. 20201536 185. 20201539 186. 20201541 187. 21211476 188. 21211487 189. 20201546 190. 20201547 191. 20201558 192. 20201563 193. 30200669 194. 20-201769 195. 20201572 196. 20201585 197. 21211357 198. 21211354 199. 21211521 200. 21211525 201. 31211519 202. 20201599 203. 20201600 204. 20201602 205. 20201603 206. 21211542 207. 20201606 208. 21211550 209. 21211552 210. 21211553 211. 30300673 212. 20201640 213. 21211560 214. 21211562 215. 21211593 216. 20201621 217. 20201622 218. 20201628 219. 20201629 220. 20201631 221. 20201633 222. 20201634 223. 21211583 224. 21211568 225. 20201643 226. 20201645 Paul Ngei Thoka. Ondato Ekesa Wilberforce. Jeremiah Kilile Mwanthi. James Robert Nyanje. Stanley Karekethi Marungu. Samuel Njenga Githuthu. Mutua Nzwili. Alfred Onyango Oduol. Caleb Kiprop Kiptum. Tom Orina Ogalo. Jonathan Nthenge Ndolo. George Onunga Owino. Micah Asiele Etsabo. Justus Muchanga Wandiosi. Francis Silla Munyoki. David Kamande Kabuga. Boniface Wanga Muyima. Gilbert Oduor Radol. Robert Gilbert Kadima. Chris Luyundi Sahani. Caleb Kishia Mujenyi. Fredrick Sikhole Siata. Peter Mwangi Karanja. David Titi Muasya. Benjamin Mwongela Mutungi. Kennedy Kimanthi Kanadi. George Njuguna Karanja. John Muthiora Ngombaru. Charles Mathi Yumbya. Jackson Rosasi Tai. Jason Thuranira M’limboro. George Adhere. Justus Mbiti Njuguna. Kenneth Njuguna Mwangi. Francis Nganga Wahuria. Peter Thuu Mutura. Muchui Muiruri. Raphael Ndeto Kituku. Muthee Njoroge Ngatha. Francis Njenga Karanja. Wilson Karimi Kaguchia. Samuel Onyango Okewe. Peter Orungo Okello. John Kariuki Muhia. Evans Kamau Mutitu. David Wainaina Njenga. Patrick Gachugu Gitau. Frncis Kagwnja Nyaga. William Muchiri Muriuki. James Monubi Nyangicha. Joseph Liyosi Adam. Jeremiah Omwenga Nyamamba. James Musui Kinilu. Harun Kamau Gacheru Gichuki. John Gakure Gichuki. Patrick Kiarie Ndegwa. Jackson Odera Dimbu. Joseph Oyugi Ayoda. Bernard Musembi Kiilu. Hudson Marino Oyere. Musembi Mutie. Lazaro Uasya Munyao. Bartholomew Mutua Kisio. Hezekiah Bunde Yaranga. David Mwololo Masya. Wycliffe Abdalla Onziru. Patrick Lumumba Luyingwa.

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227. 20201647 228. 20201649 229. 20201656 230. 20201657 231. 21211597 232. 21211607 233. 20201665 234. 21211606 235. 20201666 236. 30201668 237. 30300679 238. 21211616 239. 21211633 240. 20201676 241. 20201670 242. 20201679 243. 20201671 244. 20201687 245. 20201691 246. 21211645 247. 21211654 248. 21211654 250. 21211661 251. 20201682 252. 20201717 253. 21211702 254. 21211703 255. 20201723 256. 20201726 257. 20201730 258. 20201733 259. 20201734 260. 21211706 261. 20201736 262. 20201739 263. 20201747 264. 35350150 265. 21211733 266. 21211734 267. 21211759 268. 21211749 269. 21211753 270. 21211761 271. 20201753 272. 20201754 273. 20201756 274. 20201758 275. 20201761 276. 20201765 277. 20201766 278. 21211775 279. 20201829 280. 20201767 281. 20201775 282. 20201782 283. 20201783 284. 20201786 285. 20201788 286. 21211785 287. 20201792 288. 20201794 289. 20201797 290. 20201798 291. 20201803 292. 20201811 293. 20201812 294. 20201814 John Mochama Matunduri. Lawrence Anthony Mwangi. Edward Wamalwa. David Wainaina Gichumu. Joseph Kimutai Kones. Amedias Adeli Mengo. Josephat Kitetu Mbulu. Wicliffe Nyonges Magari. Joseph Kibue Mirie. Bernard Otieno Odero. Aggrey Makotswe Ainea. Abdulahi Yusuf Issa. Eliud Asava Loyengwa. Tom Bernard Otieno Otung. Benjamim Kaleli Ndunda. Joseph Kipkorir Langat. Fredrick Wambugu Kimita. Samuel Ngaruiya Kamau. David Wachira Chiuri. David Kitavi Lucas. Evans Omollo Nono. Allan Mugodo Eredi. Peter Njuguna Mwangi. Francis Maero Chichole. Gideon Owuor Ochieng. James Kariuki Ngugi. Francis Chege Gichuhi. Paul Mbuthia Mururia. Francis Wanyoike Njiraini. Argwings Kodhek Otieno. Justus Mutisya David. Charles Mwenje Oredi. John Ndungu Mburu. Geofrey Okoth Onyango. Willy Mbaku Kyulu. Ronald N. Onyari. Jerim Owino Ojuki. Samuel Nyamumbo Osere. Jamim Alusa Alema. Kibe Kamau. Edward Kiplangat Maritim. Nicholas Maina Karimi. John Maina Kamau. Thomas Ogwel Nyogam. Moses L.O. Oteko. Hudson Atsiambo Kiduya. Patrick Sila Nduya. Joseph M. Kiarie. Samuel Waititu Gachuhi. Joseph Kisengi Mweu. Peter Karanja Mwangi. Leonard Kangethe Mulonzi. Fredrick Mutuku Yulu. Dismas Oruko Mutho. Dominic Onyango Okeda. Thomas Ouma. Mutunga Kitheka. Joshua Nyangau Gesengi. Josephat Bundi Marete. Kennedy Alumada Lamwenya. Moses Njue Ngondu. Samuel Mbuya Ibanya. Raphael Ndonga Okola. Edward Otieno Menya. Michael Mulwa Mbuvi. Julius Marira. Alfred Kilonzi.

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295. 20201826 296. 20201831 297. 20201840 298. 20201841 299. 20201842 300. 20201850 301. 20201851 302. 20201855 303. 20201859 304. 20201865 305. 21211794 306. 21211834 307. 20201887 308. 20201868 309. 20201870 310. 20201871 311. 20201872 312. 20201878 313. 20201879 314. 20201885 315. 20201886 316. 20201889 317. 20201896 318. 20201904 319. 20201907 320. 20201908 321. 20201911 322. 20201913 323. 20201915 324. 20201916 325. 21211815 326. 21211857 327. 21211855 328. 21211868 329. 21211869 330. 21211879 331. 20201970 332. 21211871 333. 30300544 334. 30300698 335. 30300474 336. 31400284 337. 35340353 338. 42400507 339. 212119009 340. 35420167 341. 42400310 342. 30300549 343. 48480356 344. 21211961 345. 21211993 346. 21211951 347. 21211988 348. 21211998 349. 21212016 350. 21211884 351. 21212072 352. 21212073 353. 21212075 354. 21212027 355. 21212043 356. 21212069 357. 21212083 358. 42420170 359. 21212087 360. 21212116 361. 21212114 Mwambishi Roger Mofat. Mathew Muli Wambua. Nyanganyi Kennedy. Benedict Muia Mbelu. Fredrick Mbuvi Sila. Festus Mwasolo Mwanza. Gregory Mbithi Mutua. Elias Mwangi Gitonga Wycliffe Shibale Iboshe. John Kioko Muindi. Francis Mukuria Nganga. Peter Muia. Japheth Gitonga Kwantat. Benjamin Omwari Oluoch. Ethali Peter Kirigia. George Mwangi Ikenywa. Armstrong Kirera. Charles Agunda. Simon Kinyanjui Kingori. Peter Kamau Waweru. Fred Kadenge Mbuki. William Mwaka David. Patrick Ochieng Bilome. Samuel Mwangi Njuguna. Silas Owiti Kisera. Josephat Lumadede Miheso. Peter Chege Ngige. Philip Bagoge Kimei. James Mwangi Ngugi. John Kamau Njoroge. James Maina Wachira. James Gitau Mwangi. Dominic Njuguna Mathu. John Warutere Muhoro. Charles Anyangu Nakaya. Peter N. Muigai. Charles Makau Mahenga. Harun Ngalu Kiviti. Geofrey Wambua Lua. Wilson Wanyoike Muiruri. Jackton Juma Oluoch. Joseph Kilewa Muli. Valentine Kakayanga Imbaswa. George Macharia Ngure. Simon Mutisya Ngwili. John Arende Ouma. Walter Aketch Odote. Richard Munyua Njoroge. James Njuguna Kariuki. Peter Njuguna Kuria. Josephat Muanzia Ndolo. Patrick Mugo Karugu. Bernard Gushu Ngugi. Alexander Iganji Igosi. Ephantus Kenya Jumba. Dominic Wanjeme Mbeere. Joseph Nyaga Gichuvi. Hassan Marumburu. Jackson Komu Theuri. Nathan Kasela Musembi. Vitalis Oluoch Okoth. Daniel Wambua Mwonzu. Reuben Wanyika Iruri. Isaac Mweu Kinaka. Charles Ngare Gitahi. Admson Kavithi Kilonzo. Erastus Kangethe Karanja.

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362. 21212142 363. 21212150 364. 21212165 365. 20201712 366. 20201713 367. 20201722 368. 21212168 369. 21212169 370. 21212148 371. 31410422 372. 41410425 373. 41410430 374. 30300562 375. 30300564 376. 30300565 377. 30300570 378. 30300572 379. 21212207 380. 21212189 381. 21212212 382. 21212215 383. 21212231 384. 30300573 385. 30300575 386. 30300577 387. 30300576 388. 21212240 389. 21212251 390. 21213207 391. 42400313 392. 21212255 393. 21212575 394. 21212519 395. 30300581 396. 30600701 397. 30600705 398. 30600707 399. 35600700 400. 21212266 401. 21212300 402. 21212261 403. 21212637 404. 21212985 405. 21212293 406. 21212310 407. 21211219 408. 21212518 409. 40400359 410. 21212344 411. 21212305 412. 48480360 413. 21212352 414. 42400316 415. 21212376 416. 21212410 417. 21212411 418. 30300590 419. 21212394 420. 21212406 421. 21212371 422. 21212427 423. 30300592 424. 21212419 425. 30300594 426. 21212433 427. 21212984 428. 21212451 Joseph Kania Njoroge. Joseph Mugo Maita. Charles Waweru Njoroge. Julius Makau Wmbua. Matunga Matheka. George Otieno Oyoo. Peter Gichui Gitonga. Patrick Mwangi Kariuki. Arthur Kariuki Chege. Moses Mwasi Masiche. David Ndungu Waweru. Phanuel Odhiambo Naaman. Martin Ndungu Mbugua. James Kamau Kabiru. Peter Muturi Kinuthia. Zacharia Wachira Theuri. Esau Okoth Mugamba. John Githinji Nduguya. Rachael Wanjiku Kigi. Bernard Ngugi Kariuki. John Njenga Mbara. Evanson Mithia Maina. Richard Ooko Anyiengo. Joseph Sahlogo Mahagai. James Maina Wamae. Patrick Rassia Mutua. Lawrence Mbatia Nganga. Moses Kariuki Muhuri. Samuel Macharia Kaburu. Samson Mbuga Gathura. Daniel Kiplangat Koech. Johnathan Nundu Oricho. Japheth Nikinge Muchiri. Paul Kpkoech Kirui. James Karanja Mwangi. Eric Lamech Okelo. Jared Okoth Orinda. Terer Bernard Kipkoech. James Ndichu Nyoro. Kiarie Mwangi. Joseph Kamande Kimani. Titus Mainga Mbithi. Henry Kuria Gichui. David Kimutai Langat. Elijah Mutunga Musyoki. Robert Nyakundi Ondiek. David Kioko Ndwiwa. John Nganga Mungai. Gabriel Musia Mbalwa. John Kipserem Kisio. Ephanito Misieba Sinzole. Joseph Otieno Omollo. Nebat Mudavadi. Andrew Maina Waweru. Paul Macharia Waruingi. John Muiti Mathenge. Kihara Muita. Perterson Ndangira Kimani. Wanderi Kamau. Frnacis Karanja Mbugu. Timothy Amwayi Anyanda. Adamson Ogama Mbithi. Peter Njoroge Ndegwa. James Kiama Mureithi. John Mudasia Ibaya. Peter Kimeu Ndivo. Tobias Apolo Nyamgonyi.

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429. 21212453 430. 35350152 431. 30300816 432. 30300597 433. 30300596 434. 30300818 435. 21212808 436. 21213071 437. 30300815 438. 30300822 439. 30420505 440. 30300819 441. 42420503 442. 42500515 443. 42420504 444. 30300830 445. 30300831 446. 30300834 447. 30400520 448. 30300828 449. 30300835 450. 21212645 451. 21212646 452. 21212648 453. 21212649 454. 21212650 455. 21212652 456. 30600722 457. 21212657 458. 21212658 459. 2121260 460. 42420510 461. 48480362 462. 21212666 463. 21212678 464. 21212676 465. 20202184 466. 21212682 467. 21212684 468. 42420613 469. 41410514 470. 20202187 471. 20202188 472. 20202189 473. 20202190 474. 20202191 475. 20202194 476. 21212686 477. 21212688 478. 21212695 479. 21212696 480. 21212698 481. 21212702 482. 21212713 483. 21212716 484. 21212785 485. 30600719 486. 420508 487. 21212674 488. 48480356 489. 21211414 490. 21211415 491. 21211107 Bernard Kituku Wambua. Joseph Mburu Mundia. Robert Kamau Munyua. Chimasia Isitu Niva. Henry Otieno Awimbo. Albert Kipkimoi Koech. Daniel Mutuku Mulwa. Richard Maina Gachanja. Patrick Mwangi Thuo. Agusa Gidei David. Robert Kipkemoi Rotu. Albert Kavai Jiadevela. Joel Kikelo Phaustine. Korir Paul Kipkoech. Kenneth Kipkeoch Korir. Hillary Kimoyi. Victor Opondo Onyango. Daniel Theuri Wanjiru. Charles Abade Ochola. Stanley Kipngetich Mutai. John Josia Mwangi. Julius Kanampuimpwi. George Ngugi Mari. Joseph Kibandi Wanyoike. Musa Shikele Etemesi. Jesse Munori Kamau. Peter Murithi Gitau. Michael Onyango Opondo. Anderson Maina Githae. John Marira Njoroge. Samuel Maina Njoroge. Jack Swaga Okoth. Edah Wanjiru Mwangi. Martin Ishindu Simindi. Stanslaus Muthingi. Paul Muteti Mbei. Nicholas Mureithi. Charles Murungi Kirigia. Leonard Paul Musau. Vincent Kimunyu Munyao. Walter Odede Ouko. Joseph Mwenga Mutio. Antony Mito Orao. Patrick Ombaga Onyango. Benson Ombaga Onyango. George Migwi. Josephat Mathenge Nzioki. David Agutu. Daniel Githiomi Murioki. Silus Mutahi. Stephen Ngotha Kariuki. Godrick Paul Mwacheda. Moses Wamwea Kinuthia. Simon Ndungu Nyambura. Joseph Gitau. Peter Maina Waweru. Mark Waboye Otieno. Tobias Nzola Joel. Eliud Mwangi Marithi. James Njuguna Kariuki. Stephen Simon Mwangi. Geofrey Gitari Zephania. Samuel Mwangi Macharia. D.A.M. Enonda, Advocate, of M/S. Enonda, Makoloo, Makori & Co., Advocates, for the Claimants (hereinafter called the

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Union). Tom M. Macharia, Advocate, of M/S. Ndonye, Mbugwa, Atudo & Macharia, Advocates, for the Respondents (hereinafter called the Company). A W A R D. In accordance with the powers vested in him by Section 8 of the Trade Disputes Act, Cap.234, Laws of Kenya (which is hereinafter referred to as the Act), the Minister for Labour referred this dispute to the Court for consideration and determination; and his reference, together with the statutory certificates from the Labour Commissioner and the Minister himself under Section 14(9)(e) and (f) of the Act, were received by the Court on 23rd December, 2002. The dispute was then listed for mention on 6th February, 2003, when Messrs. S. Mbusia and F.M. Kalwa, Advocate, who appeared for the parties respectively, were directed to submit or file their respective written memoranda or statements by 7 th March and 29th April, 2003, and the case was fixed for hearing on 20th May, 2003. The parties submitted their memoranda or statements as directed hereinabove. Consequently, the dispute was, for one reason or another, adjourned on a couple of occasions, and it was eventually heard on 21st July, 24th September, 8th, 22nd and 23rd October, 2003. The Union did not call any witness to testify on its behalf, but relied on its written memorandum. On the other hand, the Company called and examined Mr. Joseph Wamae Wangai, R.W.I, who is a partner in the firm of M/S Deloitte & Touche, Certified Public Accountants, and Mrs. Winnie Wamboi Muthiga, R.W.2, who was the Human Resource Manager of the Company. She was also a party to the negotiations leading to the subsequent settlements or agreements arrived at between the parties on this matter. The Company is a limited liability concern incorporated in Kenya under the Companies Act, Cap.486, Laws of Kenya, and its main or principal business or activity is the transportation of passengers and parcels, while the Union is registered as such under Section II of the Trade Unions Act, Cap.233, Laws of Kenya. The parties have a valid recognition agreement and have also entered into several collective agreements which regulate the terms and conditions of service of all the unionisable employees, the latest of which was for the period 1st May 1998 to 30th April, 2000, and registered by the Court under RCA No.172 of 2000. (Union Apps.I and 2). By a letter Ref: KBS/HRM/Tawu/7/2001, dated 11th May 2001, and titled “RE: NOTICE TO DECLARE REDUNDANCY’, R.W.2 notified the Secretary General of the Union of intended redundancy of some employees due to deteriorating or poor business performance of the Company. (Company Ann.I). Consequently, the grievants were identified and offered “early retirement package” under Clause I of the parties’ agreement, dated 28th September, 2001, and declared redundant at intervals between September 2001 and June 2002 on account of restructuring or reorganization of the Company (Union App.7). There were three main settlements or agreements entered into by the parties in support thereof, dated 28th September, 30th October and 21st November, 2001 (Union Apps. 3, 5 and 6 and Company Anns. 3,4 and 5). The first settlement or agreement was signed by the Managing Director, Commercial Director and Human Resource Manager, for the Company, and by the Secretary General, Deputy Secretary General, Assistant Secretary General, Branch Secretary and 14 shop stewards, for the Union. The second settlement or agreement was signed “for” the Managing Director by the Human Resource Manager, for the Company, and again by the Secretary General, Deputy Secretary General, Branch Secretary and Chief Shopsteward, for the Union, in the presence of Mr. G.M. Muchai, COTU (K.), Deputy Secretary General and Mr. J.N. Ndiho, Provincial Labour Officer, Nairobi, who appended their signatures thereon. The third settlement or agreement was also signed by the Managing Director and Human Resource Manager, for the Company, and by the Secretary General, Deputy Secretary General, Assistant Secretary General, Branch Secretary, Branch Chairman and Chief Shopsteward, for the Union. It was witnessed by Mr. J.N. Ndiho, Provincial Labour Officer, Nairobi. It is not, however, necessary for the purposes of disposal of this dispute to go into details of or reproduce those settlements or agreements, but the sum total and substantive case of the Union is that the said settlements or agreements are null and void for non-disclosure and misrepresentation of material facts by the Company; whereas the latter has vehemently denied the assertions and maintained that the same are valid, binding and enforceable. The parties attempted to settle the matter at their own level but failed. On 29th July, 2002, the Union reported a formal trade dispute to the Minister for Labour, who accepted the dispute and appointed Mr. P.N. Macharia of Ministry of Labour Headquarters to act as the Investigator. On the basis of the investigation, the Minister released his report to the parties on 23 rd August, 2002, in which he severely castigated and criticised the Union for attempting to repudiate and scuttle the settlements or agreements; and in the circumstances, he recommended that the demands by the Union be rejected as untenable (Union App.12). The Minister finally appealed to the parties to accept the recommendation as a basis of resolving the matter, but the Union rejected it. Hence, this dispute for consideration and determination. In his submission, the learned counsel for the Union, Mr. Enonda, stated that, contrary to the provisions of Clause3.2 of the parties’ recognition agreement on Collective Claims, the Company unprocedurally, improperly and unlawfully called upon the Union members to resign or retire on their own accord from employment on payment of 15 days’ pay for each completed year

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of service, without informing the Union, and also by offering the grievants retirement benefits under Article 14, re: “Compulsory Retirement and Retirement Benefits”, instead of benefits under Article 6, re: “Redundancy”, of the parties’ collective agreement in force at the material time. This, he averred, amounted to coercion and fundamental breach of the provisions of the parties’ recognition and collective agreements. The learned counsel submitted further that when the parties eventually met, the management of the Company misled and misdirected the Union into believing that the Company was indeed facing some economic constraints and could not meet the current payroll; and hence the need to reduce the number of the workforce. He pointed out that the management of the Company went on to give wrong information to the effect that a number of the Company’s buses were parked at its yard at Eastleigh depot, and if the Union did not accept to sign an agreement on early retirement, then the Company would collapse in the next few weeks. This misinformation, he asserted, was a ploy used by the Company to hoodwink the Union to accept its (Company’s) demands or terms on early retirement of the grievants. But when the agreement was signed to lay-off the grievants on early retirement, instead of declaring them redundant, the Company release all the buses, which were parked as aforestated and also at a rented yard in Thika town, to resume full operations. However, under a Kenya Gazette Notice No.7888 of 16th November, 2001, the Company transferred “a portion of the business of public passenger transport carried on by it within the city of Nairobi and its environs” to Bustrack Ltd. with effect from 30th September, 2001 (Union App.9). On 23rd November, 2001, the Managing Director of the Company, Mr. George Thuo, also confirmed the sale of “only part of its fleet and other assets” to the said concern. Mr. Thuo said “we have sold only the city services, including some 305 buses, to Bustrack, but we still retain the Metro Shuttles and inter-city services” (Union.App.13). The learned counsel argued that all these developments were never disclosed to the Union during the negotiations; and in the circumstances, it is clear that the Company was engaged in “surface bargaining” while keeping the Union completely in the dark on the real intentions for reducing staff. He pointed out that the Company had a direct and implied duty to inform the Union of the impeding transfer of the business or part thereof in that good faith and disclosure was a condition precedent for the subsequent negotiations, and the absence of the same vitiated the grievants’ right to rely on the agreements entered into by the parties to this dispute. Thus, the Union negotiated under false representation and assumption on the Company’s financial status while the Company was consciously in breach of Article 7 of ILO Recommendation No.163 on access to information for effective bargaining. The learned counsel submitted further that the Company is able to pay the grievants their redundancy dues under Article 6 of the parties’ collective agreement or even reinstate them to their former jobs because between November, 2001 and December, 2002 it advertised and employed 38 managers and 168 unionisable drivers and conductors (Union Apps. 15 & 16). Between December, 2001 and January, 2003, the Company also purchased 33 minibuses and 51 buses at a cost of Kshs.3 million and Kshs.11 million each respectively. He said that the purchase of new vehicles and recruitment of employees was conducted immediately after the parties signed the agreement to lay-off the grievants on early retirement. The Company did not also disclose to the Union that it was transferring some business to a sister company known as Bustrack Ltd. Therefore, while the parties were negotiating over the fate of the grievants, the Company was at the same time applying to the Registrar of Companies to transfer part of its business to its aforementioned sister company (Union App.9); and its aim was to have the agreements reached on early retirement validated in order to avoid meeting the terms set under Clause 4 of the Recognition Agreement regarding the modification of the agreement and validity of the collective agreement. Hence, by paying the grievants meagre terminal dues under Article 14 of the parties’ collective agreement on early retirement, the management of the Company saved millions of shillings with which they later bought new vehicles and paid themselves hefty salaries. For the foregoing reasons, the learned counsel urged the Court to:- (a) declared that all the agreements entered into and signed by the parties on 28th September, 30th October and 21st November, 2001, as null and void and of no legal effect, and (b) award that the grievants be paid their terminal benefits under Article 6 of the parties’ collective agreement on redundancy. In his introductory response, the learned counsel for the Company, Mr. Macharia, submitted that it operated 3 divisions, namely:- (a) Bustrack Division – this ran city commuter bus operations from suburb to city centre through to suburb and back to city centre. (b) Metro Shuttle Division – this ran the mini bus commuter services between suburbs and the city centre but not beyond. (c) Express Division – this ran countrywide operations from Nairobi to other cities or towns in Kenya.

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He said that the performance of Bustrack, which was the suburb-city-suburb operation, was steadily declining and making huge losses due to several factors, e.g. poor operating within the city in terms of bad roads, unregulated competition from ‘matatus’, generally poor economic conditions at the time and old and poorly performing buses. Therefore, the entire Company was being supported by the income generated from the Express and Metro Shuttle Divisions, and specifically largely from the latter; and in order to sustain the Company in the long-term, it was necessary for the management to re-engineer its mode of operation and re-organise it so as to evade insolvency and imminent closure. Meanwhile, the Company could not maintain continued salary payment of all its employees, and by a notice, dated 11th May, 2001, it informed the Union of its intention to declare redundancies. The said notice reads in extenso thus: “RE: NOTICE TO DECLARE REDUNDANCY The challenges of the business environment in the country have continued to be difficult with the current hard economic situations our clientile are experiencing. The competition in the market has also increased and this has made it necessary to adopt varied approach to operational systems. The company out sourced the tyre management services, to be handled by experts for professional expertise and efficiency and the vehicle cleaning service for exclusive concentration on bus cleanliness in an effort to meet our customers expectations. This has already proven a better option and has necessitated the review of our staff levels. The indications are that about ninety (90) members of staff will be declared redundant. Details on the exact number to be affected and the effective date will be communicated to you in due course. Yours faithfully, KENYA BUS SERVICES LIMITED Winnie Muthiga HUMAN RESOURCE MANAGER” Therefore, the Union was well aware that the management was re-organising and restructuring the Company (Company Ann.2(iv)); and consequent upon negotiations between the parties, it was agreed that the Company would send not more than 1100 employees on unpaid leave, which would not exceed 1½ years, with effect from 30th September, 2001. It was provided therein that should the business expand, some of the affected employees would be recalled (Company Ann.3). The parties held further negotiations and signed two supplementary agreements on 30th October and 21st November, 2001, which dealt with the financial implementation of the earlier agreements. (Company Anns. 4 and 5). On redundancy of the grievants, the learned counsel averred that the parties agreed, in their agreement, dated 30th October 2001, that only 522 employees would be affected by the issue of unpaid leave; and out of these 522 employees, 19 of them had resolved their cases directly with the Company, while 12 others were recalled back for normal duty. Therefore, the grievants, who are the subject of this dispute, were to be declared redundant, rather than being sent on unpaid leave. He pointed out that on 21st November, 2001, the parties agreed that the grievants would be paid according to a formula agreed upon on 30th October, 2001, and a further 124 employees proposed by the Company for early retirement were also accepted on the same terms as the grievants. Thus, a total of 615 employees were to be sent on early retirement. Consequently, the Company made payments in terms of the final agreement between the parties, totaling Kshs.17,225,032/= which was acknowledged by the Union; and to-date only 31 out of the 491 grievants have not collected their early retirement dues. Thus, this dispute involves only 31 grievants who have refused to collect their terminal dues and not all the grievants as alleged by the Union. As regards non-disclosure and misrepresentation of material facts, the learned counsel submitted that the Union was all along aware of the Company’s desire to send the employees on unpaid leave in order to expand the Express and Metro Shuttle Divisions services. He said that the Company also made it clear to the Union that once financial conditions improved, some of the affected grievants would be recalled back, and in fact 12 of them were recalled as early as 21st November, 2001. Mr. Macharia admitted that the Company indeed transferred a portion of its business to its sister company, Bustrack Ltd., on 8th November, 2001; and the fact that the business transfer had been gazetted made it public knowledge. However, the disclosure of this specific fact would have made absolutely no difference to the poor state of the Company’s financial affairs, but it was merely to put in place the plans to restructure and re-organise it. (Company Ann.2). The fact that the three divisions of the Company had to be split into two concerns and the business transferred as hereinabove was ample evidence to show that the Company was not in good financial condition, otherwise there would have been no need to split it up. But this was only done to ensure long-term viability of the Bustrack Division and this fact was within the knowledge of the Union and the grievants. In any case, the learned counsel asserted, there was no duty on the part of the Company to disclose information of any nature whatsoever to the employees during negotiations. He pointed out that the contract of employment and the collective

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bargaining agreement between the parties are not contracts of utmost good faith (uberrimae fidei). Notwithstanding the aforesaid, the learned counsel maintained that the Company negotiated with the Union, on behalf of the grievants, in good faith and in accordance with the provisions of Clause 3.3 of the Recognition Agreement and the parties’ collective bargaining agreement in force at the material time (Company Anns.6 and 7). Mr. Joseph Wamae Wangai, R.W.I, who is a partner in the firm of M/S. Deloitte & Touche, Certified Public Accountants and had worked as an auditor for 20 years, told the Court that his firm provided consultancy services to the Company during its restructuring in 2001. He said that the Company suffered a significant loss of Kshs.355 million from profit of Kshs.117 in 1997. He said the Company incurred further losses of Kshs.186 million, Kshs.211 million and Kshs.140 million in 1999, 2000 and 2001 respectively, and its indebtedness stood at kshs.905 million in 2001. Its equity also declined from Kshs.1360 billion in 1997 to Kshs.405 billion in 2001. Therefore, the financial position of the Company in the year 2001 was weak , and it could not survive any longer unless restructuring was done or carried out. He pointed out that the restructuring was necessitated by aging fleet of buses, poor infrastructure and introduction of unregulated transport system, and the only options open to the Company were either to borrow heavily or to inject more money into the business or be declared insolvent. In this scenario, the Company had to be restructured by separating urban from rural transport, but there was no change of ownership. Therefore, the Company acquired new buses on loan from General Motors Ltd. The firm, therefore, recommended that the Company should be restructured on account of poor business performance. On cross-examination, Mr. Wangai said that reduction or redundancy of the employees was part of restructuring or reorganisation of the Company. Mrs. Winnie Wamboi Muthiga, R.W.2, who was the former Human Resource Manager of the Company and also affected by the restructuring or re-organisation, told the Court that she was a party to the negotiations and settlements which were arrived at between the parties due to poor business performance of the Company. For this reason, the Company was restructured so as to improve efficiency and reduce overheads. She strongly denied that the Company hid or misrepresented the facts concerning the redundancy of the grievants and the reasons behind the restructuring of the Company. Mrs. Muthiga deponed further that the staff were aware of the circumstances which led to the restructuring or re-organisation of the Company, and there was no pressure or coercion applied by the management of the Company on the officials of the Union to enter into the said settlements or agreements. Consequently, the Union agreed for an early retirement of the grievants under Article 14, instead of Article 6, of the parties’ collective agreement, and almost all of them were paid their terminal dues. On cross-examination, Mrs. Muthiga maintained that the restructuring or re-organisation arose because of bad economic situation faced by the Company; and in the circumstances, the grievants were laid-off as aforestated. She said that there was no coercion exerted on the grievants and the Union to enter into the said settlements or agreements for payment of their terminal dues for early retirement under Article 14, instead of Article 6, of the parties’ collective agreement in force at the material time. Thus, there was neither non-disclosure nor misrepresentation of material facts to the grievants and the Union as alleged. In the circumstances, the learned counsel for the Company prayed that:- (a) the demand by the Union be rejected as baseless and untenable. (b) this Hon. Court do declare that the settlements or agreements entered into and signed by the parties on 28 th September, 30th October and 21st November, 2001 as valid, binding and enforceable. In this case, the main question for consideration is whether or not the Company disclosed and represented the true facts and circumstances which brought about “early retirement” of the grievants under Article 14 of the parties’ collective agreement in force at the material time. The learned counsel for the Union, Mr. Enonda, alleged that the management of the Company had an obligation to disclose, which they did not, all the material facts which occasioned “early retirement” of the grievants, and as urged the Court to find that the aforementioned settlements or agreements which were entered into and signed by the parties be declared null and void, and that the grievants be paid their terminal dues in accordance with Article 6, re: Redundancy, of the parties’ collective agreement in force at the material time. On the other hand, the learned counsel for the Company, Mr. Macharia, stated that the negotiations and settlements or agreements for an early retirement of the grievants were entered into by the parties freely, without coercion or pressure by the management of the Company on the officials of the Union; and that the grievants received their terminal benefits in accordance with Article 14 re: Compulsory Retirement and Retirement Benefits, of the parties’ collective agreement and had finally settled their accounts with the Company. Therefore, the Union had no cause of action or grievance at all to bring this matter to the Court. It is true that the grievants were laid-off on account of restructuring or re-organisation as a result of recession in or poor

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business performance; and ideally the parties to negotiations and settlements arising from such a situation should have come to the negotiating table with open minds. It is also important to recognise that both the management and employees have a stake in the Company, and they should have been able to arrive at an acceptable settlement or agreement. Annexure I of the submission by the learned counsel for the Company, Mr. Macharia, shows clearly that the Company intended to declare some employees redundant; i.e. under Article 6 of the parties’ collective agreement. One, therefore, wonders how and why the parties negotiated and settled the matter under Article 14 thereof to the detriment of the grievants and for whom the collective agreement was entered into by the parties. On the allegations of non-disclosure and misrepresentation of material facts by the Company to the Union, I find that the two parties, either knowingly or unknowingly, committed a grave mistake by entering into the said settlements or agreements without considering the paramount interests of the grievants. In the circumstances, I am firmly satisfied or convinced that the settlements are incapable of implementation as they stand. Accordingly, I DECLARE and ORDER as follows:- (a) that all the settlements or agreements entered into and signed by the parties on 28th September, 30th October and 21st November, 2001 as null and void, and (b) that the terminal benefits of the grievants be calculated and paid for under Article 6 of the parties’ collective agreement in force at the material time, less the amount already paid to them, if any. I sought for the written opinion of the Members of the Court but they were unable to render any. Hence, I have made this decision under Section 14(8) of the Act, acting with the full powers of an umpire. DATED, delivered and signed at Nairobi this 18th day of August, 2004. Charles P. Chemmuttut, JUDGE.

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