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ELRCDismissedCause No. 8 of 2002· [2002] KEELRC 38 (KLR)

IMPALA GLASS INDUSTRIES LTD v KENYA UNION OF COMMERCIAL, FOOD & ALLIED WORKERS [2002] KEELRC 38 (KLR)

Industrial Court of Kenya
11 November 2002
CCCharles P. Chemmuttut
370 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An employer who skips a labour court hearing cannot later dodge the award by asking the court to 'interpret' it in their favour.

What this practically means

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Executive summary

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This ruling of the Industrial Court of Kenya at Nairobi (Charles P. Chemmuttut, J) deals with an application under Section 16(5) of the Trade Disputes Act, Cap. 234, by Impala Glass Industries Ltd seeking interpretation of an ex parte award announced on 15th October 2002 in a dispute concerning the forced early retirement of seven grievants and the Company's refusal to discuss a Voluntary Early Retirement package. Through Mr. J.N. Namasake of the F.K.E., the Company sought a declaration that it had nothing to pay to two grievants and that any award exceeding 12 months' monetary wages was ultra vires Section 15(1)(ii) of the Act. The Court noted that Namasake had neither filed a reply to the Union's memorandum nor appeared at the hearing, despite service and mutually agreed dates, so the ex parte award was properly made and could not be questioned. The Court held that the sums awarded represented the grievants' unexpired service periods had they retired normally at age 55, lost through unilateral, arbitrary and premature retirement, rendering the Section 15(1)(ii) objection baseless. Characterising the interpretation application as a disguised appeal against the award and an abuse of process, the Court summarily rejected it on 11th November 2002. No costs order was made. Neither party appeared at the interpretation stage.

Key legal issues

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01

Validity of the ex parte award

Holding

The ex parte award was validly made because the Company, through Mr. Namasake, neither filed a reply statement nor appeared, despite service and mutually agreed dates

Reasoning

The dates for filing the reply and hearing were taken by mutual agreement, and the Company was served with the Union's memorandum but filed no reply and gave no reasons for non-appearance. The Court therefore acted within its powers in proceeding ex parte, and such an award cannot be collaterally attacked through an interpretation application.

p. 1
02

Whether the award offended Section 15(1)(ii) of the Trade Disputes Act (12-month limit)

Holding

The claim that the award exceeded 12 months' monetary wages was baseless because the amounts represented the grievants' unexpired service had they retired normally at 55 years, lost through unilateral, arbitrary and premature retirement

Reasoning

The Court characterised the awards as compensation for the unexpired periods of the grievants' services, attributable directly to the Company's unilateral and arbitrary early retirement of them. Section 16(5) interpretation jurisdiction cannot be used to re-litigate the substance of the award; such an attempt is an appeal in disguise and an abuse of process, warranting summary rejection.

p. 1

Legal principles established

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  • A party who neither files a reply nor appears despite service and mutually agreed dates cannot question an ex parte award; the Court is justified in proceeding ex parte
  • An application for interpretation of an award that in substance challenges the merits of the award is an appeal in disguise and an abuse of process

Court orders

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  1. 1.The application for interpretation of the award is summarily rejected
Jurisdiction invoked
Section 16(5) of the Trade Disputes Act, Cap. 234, Laws of Kenya (interpretation of award)

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, "IMPALA GLASS INDUSTRIES LTD v KENYA UNION OF COMMERCIAL, FOOD & ALLIED WORKERS [2002] KEELRC 38 (KLR)", Case Analysis (2002). Cause No. 8 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2002/38/eng@2002-11-11

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