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ELRCPartially AllowedCause 2181 of 2014· [2019] KEELRC 31 (KLR)

Trailink Group Limited v Kenya Long Distance Truck Drivers & Allied Workers Union [2019] KEELRC 31 (KLR)

Employment and Labour Relations Court
20 December 2019
3,072 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A pending appeal did not stop a Kenyan employment court from enforcing its judgment, and the company was ordered to pay interest and costs.

What this practically means

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Executive summary

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This ruling by Maureen Onyango J of the Employment and Labour Relations Court at Nairobi deals with a notice of motion dated 3rd October 2019 by the Kenya Long Distance Truck Drivers and Allied Workers Union seeking adoption of its computation of Kshs. 32,616,329 as a decree for execution following the judgment of Nduma J delivered on 26th May 2017, which awarded grievants eight months' salary as compensation for wrongful termination plus terminal benefits. The claimant, Trailink Group Limited, opposed the application, contending that the issues were the subject of Civil Appeal No. 88 of 2018, that Wasilwa J had declared the Court functus officio, and that the computation was inaccurate and unproved. The Court framed two issues: jurisdiction and entitlement to the orders sought. It held that the pendency of an appeal does not oust its execution jurisdiction, noting no stay of execution was in force - the claimant's stay application had been dismissed by Radido J, and conditions of the conditional stay granted on 24th November 2017 were never met. On quantum, the Court adopted the Respondent's computation of notice pay and the 8 months' compensation, but excluded names not appearing in the claimant's exhibits and those re-employed, ordered duplicated names compensated only once, and directed that salaries be computed per pay slips where overstated or understated. Notice pay was held to form part of terminal benefits, applying the Brooke Bond case. However, service pay was excluded because the Respondent failed to prove which grievants were not NSSF members. The Court directed the Respondent to apply to the Deputy Registrar for a decree on the adjusted computation, awarded interest from the date of judgment, and ordered the claimant to bear the costs of the application.

Key legal issues

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01

Whether the pendency of an appeal ousts the trial court's jurisdiction to entertain an application for adoption of computation and issuance of a decree

Holding

The Court has jurisdiction to hear the application notwithstanding the pending appeal, since no stay of execution or stay of proceedings was in place.

Reasoning

Order 42 Rule 6 of the Civil Procedure Rules provides that an appeal does not operate as a stay of execution unless the court orders otherwise. The claimant's application for stay had been dismissed by Radido J on 16th February 2018, and the conditional stay granted on 24th November 2017 lapsed when conditions were not met. With no stay in force, the Court retained jurisdiction over execution matters.

p. 3
02

Whether the Respondent's computation of quantum meruit should be adopted as a decree

Holding

Adopted in part: notice pay and 8 months' compensation, but with adjustments - names not appearing in the Claimant's exhibits and re-employed persons removed, duplicated names compensated once, and salaries corrected per pay slips.

Reasoning

The claimant failed to file its own computation as directed by the judgment, despite Section 74(1) of the Employment Act requiring employers to keep employee records and Section 10(7) placing the burden of employment particulars on the employer. However, the Court found errors in the Respondent's computation: omitted names, duplicated names, and overstated/understated salaries contradicted by pay slips, warranting corrections before adoption.

p. 5
03

Whether grievants are entitled to notice pay as part of terminal benefits

Holding

Notice pay forms part of terminal benefits and the grievants are entitled to it as computed.

Reasoning

Although the judgment of Nduma J did not specify which terminal benefits accrued, the finding that termination was unlawful, together with Section 49(1)(a) of the Employment Act and the reasoning in Elisha Kirigha Gezzam v Brooke Bond Kenya Ltd that terminal benefits denote the sum total of payments on termination of employment, justified including notice pay.

p. 5
04

Whether grievants are entitled to service pay

Holding

Service pay is not part of the terminal dues payable, as it was not specifically awarded and the Respondent did not prove which grievants were not NSSF members.

Reasoning

Section 35(5) and (6) of the Employment Act provides that service pay is payable upon termination under subsection (1)(c), but excludes employees who are members of a registered pension or provident fund, gratuity scheme, more favourable employer scheme, or the NSSF. Pay slips showed NSSF deductions for some employees but nil for others, and the Respondent did not adduce evidence distinguishing them.

p. 6

Legal principles established

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  • An appeal does not operate as a stay of execution; pendency of an appeal does not oust the trial court's jurisdiction to execute its own decree.
  • The burden of proof of employment particulars rests with the employer.
  • Severance pay is a species of terminal benefits, and notice pay forms part of terminal benefits where termination was unlawful.

Court orders

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  1. 1.The Respondent's computations of notice pay and 8 months' compensation adopted, excluding names not appearing in exhibits 8 and 10 of the affidavit of Peter Njenga sworn on 23rd January 2015, and those re-employed as per Exhibit 7 of the same affidavit
  2. 2.Stephen Mulwa and James Thuo to be compensated only once despite repeated names
  3. 3.Terminal benefits of Samuel M. Musee, Lazarus W. Wafula, Musyoka Muia, Daniel K. Kiilu, Joseph M. Mwendo and Samson S. Nzumali to be computed as per the correct salaries reflected in their pay slips
  4. 4.Service pay is not part of the terminal dues payable herein
  5. 5.Claimant to pay interest on the awarded amount from the date of judgment until payment in full
  6. 6.Claimant to bear the costs of the application
  7. 7.Respondent to make an application to the Deputy Registrar to issue a decree on the amount assessed as adjusted in the ruling
Jurisdiction invoked
Execution of the court's own judgment and decree under Order 42 Rule 6 of the Civil Procedure Rules; the pendency of Civil Appeal No. 88 of 2018 does not oust execution jurisdiction

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, "Trailink Group Limited v Kenya Long Distance Truck Drivers & Allied Workers Union [2019] KEELRC 31 (KLR)", Case Analysis (2019). Cause 2181 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/31/eng@2019-12-20

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