Kenya Union of Journalists v Standard Group

3. In response, the Respondent filed a Statement of Response dated 26th October 2020 averring that following the announcement of the first case of Covid-19 Pandemic in Kenya, the Nairobi Securities Exchange (NSE) halted trading on Friday 13th March 2020 and sent out a notice on the same. That the Respondent being a public listed company in the NSE, was grossly afiected by the halt in trading, which impacted the value of its shares. The Respondent fronted that the Pandemic greatly afiected its business financially and consequently, its Board of Directors approved a 50% pay cut on all nonexecutive directors’ allowances and fees/honoraria efiective the first quarter of 2020 and payment of the same to be deferred for six (6) months. The Respondent’s case is that it had demonstrated that it is a victim of force majeure events constraining its ability to meet its contractual obligations and that it indeed issued the said Memo as pleaded by the Claimant. It argued that the present suit is a trade dispute within the meaning of the Labour Relations Act, 2007 and that the Claimant Union should therefore have first reported the same to the Minister for resolution according to Part VIII of the said Act. That Article 159 of the Constitution of Kenya directs Courts to encourage alternative means of dispute resolution and that the Claimant should first exhaust the dispute mechanism provided in Statute before coming to this Court. The Respondent’s stance was that considering the myriad of challenges it is facing, it made the necessary decisions to ensure it remains a going concern and maintains an employment relationship with its employees. It thus prayed that the present claim be dismissed with costs to the Respondent. 4. In evidence, the Claimant’s Witness, Mr. Eric Oduor, stated under cross-examination that an agreement was signed with the Claimant Union before the pay cut and that they did not sue because of this pre-signed agreement. He relied on the 2018-2020 CBA in asserting that there was a strict duty to negotiate terms and conditions of service between the employer and members of the Union. On the other hand, the Respondent’s Witness, Ms. Carol Achieng’ Muga confirmed under cross-examination that there was no prior agreement with the Claimant Union. 5. No submissions had been filed as at Monday 3rd June 2024 when proof reading of the judgment was made. 6. The parties have been in congress for a very long time. By the reckoning of time by this Court it is well over 52 years from the first interaction between them in 1972. As such, a lot of history exists between the parties. In the case before me, a pay cut was efiected in April 2020. At the time, the novel corona virus known as Sars-Covid 19 was making its presence felt all around the world. As all can recall, it brought the world to a near halt. There was suspension of air travel, public meetings and gatherings were banned, people had to have masks, use various protocols to ensure safety of the populace. We lost many souls to the disease. The impacts were felt in business concerns afiecting employers and employees alike. The Claimant Union has members in the Respondent and they were acutely afiected by not just the pay cut but some employees even lost their livelihoods. The Respondent mitigated the efiects of the Covid 19 pandemic by ensuring the members of the Claimant were notified of the pay cut. While no consultation seems to taken place, the Court takes judicial notice of the extraordinary circumstances prevailing at the time. The Covid 19 measures were temporary in their nature in my view and as of this time it would be expected that normalcy, or a semblance thereof has been achieved. The Court was not apprised of the next CBA cycle and what that portends to the Claimant’s members. Is the position where it was expected to be in the current cycle? It would be unconscionable to expect the Respondent to make good the loss sufiered by its employees over the Covid period. It was a sad and sorry situation that no one could have predicted and one the Respondent could not have prevented. The Court cannot equally place any blame on the Claimant for making the efiort to have its members obtain some modicum of restitution. In my considered view, having made it through that tough season, it is hoped the Respondent and Claimant will find common ground going forward to renew their https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1347/eng@2024-06-06 2

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relationship and amity for the common good of the stafi and the enterprise. The suit having been an exceptional one, is one where the Court will not grant any costs despite an order dismissing the suit. It is so ordered. Dated and delivered at Nairobi this 6th day of June 2024 Nzioki wa Makau JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1347/eng@2024-06-06 3

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