Kenya Engineering Workers' Union v Jitan Steel Ltd (Cause 24 of 2004) [2004] KEIC 3 (KLR)
The bottom line
#A Kenyan employer that ignored repeated court notices lost a labour dispute unopposed, with all the union's demands granted in full.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the dispute could properly be heard ex-parte given the Company's repeated non-appearance and failure to file a reply statement
- 2.Whether the Court should award the terms and conditions of service demanded by the Union, covering basic minimum wages, general wage increase, leave travelling allowance, house allowance, sick leave, termination of service, retirement benefits and death benefits
Key legal issues
#Whether ex-parte determination of the dispute violated the principles of natural justice
It did not; the Company was given repeated opportunities and served but neither filed a reply statement nor appeared, so the hearing proceeded ex-parte fairly.
The Court traced the repeated mentions and hearings at which the Company never appeared and never filed a reply, despite service through Securicor. Relying on the Supreme Court of India decision in Lakshmi Devi Sugar Mills Ltd, it held that where a party is notified and given full and free opportunity to defend itself but fails to attend, an ex-parte hearing is fair and does not offend natural justice; a party cannot profit from its own wilful default. The Court was thus at liberty to reach its own conclusions on the Company's culpability.
Whether the Union's demands on terms and conditions of service should be awarded
Awarded in full, the Company having filed no reply or appearance to contest them.
With no reply statement filed and no appearance at any mention or hearing despite proper service, the Union's demands went unchallenged. Mr Omolo urged the Court to award the demands as prayed, covering eight heads: basic minimum wages, general wage increase, leave travelling allowance, house allowance, sick leave, termination of service, retirement benefits and death benefits. The Court granted the award in the terms sought.
Legal principles established
#- Where a party is notified to file a reply and appear but fails to do so after repeated opportunities, ex-parte proceedings do not violate natural justice and the party cannot take advantage of its own wilful default.
- An ex-parte hearing is fair where full and free opportunity to be heard was afforded.
Court orders
#- 1.Award granted in terms of the Union's demands: basic minimum wage increases of 25% in each of the first and second years per the stated grades
- 2.General wage increase of 50% with effect from 1st June 2000 and 50% on top of wages with effect from 1st June 2001
- 3.Leave travelling allowance of Kshs 2,000 for the first year and Kshs 2,500 for the second year
- 4.House allowance of Kshs 2,100 first year and Kshs 3,150 second year; company-housed employees to have houses repaired, electricity and water installed and more toilets and bathrooms built
- 5.Sick leave of 90 days full pay and a further 90 days half pay in any sick year on production of a certificate
- 6.Termination of service: 2 months' notice or pay in lieu for 1-4 years' service; 2.5 months for 5-10 years; 3 months for over 10 years
- 7.Retirement benefits calculated at 40 days per completed year for 1-5 years, 60 days for 6-10 years, and 90 days per completed year above 10 years
- 8.Death benefits: employer to provide coffin and transport for the deceased and his belongings or Kshs 25,000
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 8 of the Trade Disputes Act, Cap. 234, Laws of Kenya (reference by the Minister for Labour)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstanced, the dispute was heard ex-parte.
the party cannot be allowed to take advantage of his own wilful act to avoid service of the notice or the date of the hearing of the dispute
In this case, full and free opportunity was given to the Company to file its reply statement and to appear with a view to defending itself, but it did not bother.
Accordingly, I award in terms of the Union’s demands hereinabove.
On consultation, both members of the Court concur with this decision.
Issues in the judgment
#The judgment states 'On consultation, both members of the Court concur with this decision', implying a multi-member bench, but only one judge (CP Chemuttut, J) is named in the coram; the other members are not identified.
Several items under the Union's 'Death of an employee' demand (ii)-(iv) are left blank in the judgment as reproduced.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Engineering Workers' Union v Jitan Steel Ltd (Cause 24 of 2004) [2004] KEIC 3 (KLR)", Case Analysis (2004). Cause 24 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2004/3/eng@2004-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.