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ELRCDismissedCause No. 66 of 2000· [2007] KEELRC 22 (KLR)

PRIVATE SAFARIS (E.A.) LTD v KENYA GAME, HUNTING & SAFARIS WORKERS’ UNION [2007] KEELRC 22 (KLR)

Industrial Court of Kenya
24 May 2007
CCCharles P. ChemmuttutAKA.K. KerichHGH.B.N. Gicheru
1,115 words in judgment
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The bottom line

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The Industrial Court dismissed the company's attempt to reduce a deceased employee's award, ruling it was too late to challenge dues it never disputed during the hearing.

What this practically means

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Executive summary

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The Company applied under Section 16(5) of the Trade Disputes Act, Cap. 234 for interpretation of the Industrial Court's award of 11th October 2002, by which the summary termination of its employee, Abud Mohammed Mittwan, was reduced to normal termination and he was awarded Kshs.569,038.00 (terminal benefits of Kshs.360,388.00 plus six months' salary compensation of Kshs.208,650.00), subject to lawful statutory deductions. Through Mr. Ambenge, the Company argued that the items tabulated at page 7 of the award went beyond the Union's memorandum of claim, that the Union never specifically pleaded gratuity or allowances, that the Company's terms provided a pension scheme rather than gratuity which had already been paid, and that the award's definitions of salary, wages, pay and remuneration conflicted with Sections 5 and 9 of the Employment Act, rules 3, 4 and 6 of the Regulation of Wages (General) Order, and Section 16(4) of the Trade Disputes Act. It sought rectification substituting Kshs.282,913.25. The Union, through Mr. Ndolo, opposed, contending the late grievant had personally clarified the dues in Court without challenge and it was too late after his demise to contest the award. The Court agreed, holding the definitions were merely illustrative and the award was not inconsistent with the law. The application was dismissed, and the Company was ordered to pay forthwith the balance of Kshs.289,038.00 (the award less Kshs.280,000.00 admittedly paid), less lawful statutory deductions, to the grievant's widow. No costs order was recorded.

Key legal issues

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01

Scope of interpretation of award under Section 16(5) of the Trade Disputes Act

Holding

The application for interpretation failed; the Court upheld its award of Kshs.569,038.00 in full and final settlement of the grievant's terminal dues, subject only to lawful statutory deductions and credit for amounts already paid.

Reasoning

The Court noted the grievant personally appeared and clarified the dues owed to the full satisfaction of the Court, and the Company did not challenge him. The Union's tabulated demand at page 7 of the award was treated as the basis of the award. The definitions of salary, wages, pay and remuneration in the award were merely illustrative and did not conflict with Sections 5 and 9 of the Employment Act, the Regulation of Wages (General) Order, or Section 16(4) of the Trade Disputes Act. It was also too late, after the grievant's demise, to contest the award.

p. 3

Legal principles established

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  • A party who does not challenge a grievant's clarification of dues during the hearing cannot later contest the award after the grievant's demise.
  • An award's definitional illustrations of salary, wages and remuneration do not render the award inconsistent with the Employment Act or wage regulations.

Court orders

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  1. 1.Application for interpretation of the award dismissed
  2. 2.Company ordered to pay forthwith the balance of Kshs.289,038.00, less lawful statutory deductions if any, to the widow of the late grievant in terms of the award

Authorities

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Legislation

  • Trade Disputes Act, Cap. 234, Laws of KenyaSection 16(5)
  • Trade Disputes Act, Cap. 234, Laws of KenyaSection 16(4)
  • Employment Act, Cap. 226, Laws of KenyaSections 5 and 9
  • Regulation of Wages and Conditions of Employment Act, Cap. 229, Laws of KenyaRegulation of Wages (General) Order, rules 3, 4 and 6
Jurisdiction invoked
Section 16(5) of the Trade Disputes Act, Cap. 234, Laws of Kenya

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, "PRIVATE SAFARIS (E.A.) LTD v KENYA GAME, HUNTING & SAFARIS WORKERS’ UNION [2007] KEELRC 22 (KLR)", Case Analysis (2007). Cause No. 66 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2007/22/eng@2007-05-24

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