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ELRCAllowedCause No. 42 of 2002· [2002] KEELRC 25 (KLR)

KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS, HOSPITALS & ALLIED WORKERS v COAST GYMKHANA CLUB [2002] KEELRC 25 (KLR)

Industrial Court of Kenya
8 October 2002
CCCharles P. ChemmuttutJOJ.C. OdagaJKJ.M. Kilonzo
1,032 words in judgment
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The bottom line

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A Kenyan employer that ignored a labour dispute lost automatically, ordered to pay Kshs. 52,507.50 after its advocate falsely claimed a settlement.

What this practically means

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Executive summary

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The Minister for Labour referred a trade dispute to the Industrial Court under section 8 of the Trade Disputes Act concerning the alleged wrongful dismissal of Jimmy Mulwa, a bar waiter employed by Coast Gymkhana Club from 1st January 1980 and dismissed on 31st March 1995 for alleged failure to respond to warning letters, insubordination, malingering and absenteeism after 15 years of service. The Union's memorandum claimed terminal dues and compensation netting Kshs. 52,507.50, including four months' salary in lieu of notice, pro-rata leave, leave travelling allowance, fifteen years' terminal benefits, public holidays, underpayment of house allowance, and four months' salary for wrongful dismissal. A Ministry of Labour investigation had found the allegations against the grievant unjustified and amounting to victimisation, and the Minister recommended the dismissal be reduced to normal termination with full terminal benefits plus four months' salary compensation; the Club rejected that recommendation. The Club filed no reply and did not appear; its advocate had indicated an amicable settlement which the Union denied knowing of, leading the Court to find the advocate had intentionally misled both the Court and the Union. The Court accordingly allowed the demand ex-parte and ordered the Club to pay the terminal dues and compensation as claimed. The Members of the Court concurred with the decision of Chemmuttut, J.

Key legal issues

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01

Wrongfulness of the grievant's dismissal

Holding

The dismissal of the grievant was unjustified and wrongful, following the Minister's investigator's findings of victimisation.

Reasoning

The dispute was investigated by the Ministry of Labour, whose report released on 24th July 1997 found the allegations against the grievant unjustified and amounting to victimisation. The Minister recommended reduction of the dismissal to normal termination with full terminal benefits plus four months' salary for wrongful dismissal. The Club rejected the recommendation, and the Union claimed its package as prayed.

p. 2
02

Ex-parte award on default

Holding

The award was made ex-parte in default of a reply statement and appearance, the Club's advocate having misled the Court and the Union about a purported settlement.

Reasoning

The Club did not file a reply to the Union's memorandum and its advocate, Mr. Namasake, informed the Court the matter would be amicably settled and advised the Union's advocate not to travel to Mombasa for the hearing. The Union denied knowledge of any settlement. The Court treated this as intentional misleading and proceeded to award ex-parte in favour of the Union.

p. 3

Legal principles established

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  • Where a respondent fails to file a reply statement and does not appear, and its advocate has misled the Court and the Union about an amicable settlement, the Court may enter an ex-parte award in default.

Court orders

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  1. 1.The demand is allowed ex-parte and the Club is ordered to pay the terminal dues and compensation to the grievant as claimed, totalling Kshs. 80,247.00 less Kshs. 27,740.00, i.e. net Kshs. 52,507.50
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya (Minister for Labour's reference)

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 UNION OF DOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS, HOSPITALS & ALLIED WORKERS v COAST GYMKHANA CLUB [2002] KEELRC 25 (KLR)", Case Analysis (2002). Cause No. 42 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2002/25/eng@2002-10-08

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