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IndustrialDismissedCause 101 of 2006· [2008] KEIC 2 (KLR)

Benori Agencies & Services Ltd v Bakery, Confectionary, Manufacturing & Allied Workers’ Union; Candy Kenya Ltd (Interested Party) (Cause 101 of 2006) [2008] KEIC 2 (KLR)

Industrial Court of Kenya
13 February 2008
579 words in judgment
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The bottom line

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Kenya's Industrial Court threw out Benori's attempt to relitigate a lost union recognition dispute by dressing it up as an 'interpretation' request, and ordered the award implemented immediately.

What this practically means

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Executive summary

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This is a ruling on an application for interpretation of an award previously announced by the Industrial Court on 29th November 2007 in Cause 101 of 2006, in which the Court had ordered Candy Kenya Ltd to accord formal recognition to the Bakery, Confectionary, Manufacturing & Allied Workers' Union as the sole and appropriate representative of unionisable employees and to sign a recognition agreement within three months. Benori Agencies & Services Ltd, described as the second Company, filed the application on 14th December 2007 through M/S. Perez Odero & Co., Advocates, under Section 16(5) of the repealed Trade Disputes Act, Cap. 234, alleging that most employees did not wish to join the Union, that signatures had been forged, that some employees had withdrawn membership, that many employees were casuals, that the Union had not recruited a simple majority, and that the Company's date of incorporation had not been addressed. The Court found no merit in the application: the issues had already been considered by the Investigator and by the Court at the hearing, the certificate of incorporation showed incorporation on 9th February 2006 (not 2002 as counsel asserted), and the 1999 formation claim had never been canvassed nor supported by documents. Holding that the application was in substance an appeal against the award, the Court summarily rejected it as untenable, frivolous, vexatious and an abuse of process, and ordered Candy Kenya Ltd to implement the award immediately. No costs order was made.

Key legal issues

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01

Whether the purported interpretation application was in substance an appeal against the award

Holding

It was; the Court rejected it summarily as untenable, frivolous, vexatious and an abuse of process.

Reasoning

The grounds raised - employee interest in the Union, forgery of signatures, withdrawal of membership, casual status of employees and adequacy of recruitment - were the very issues considered by the Investigator and by the Court during the hearing. Section 16(5) permits interpretation only; it does not permit a party to reopen findings. An application that in substance challenges the award is an appeal, which Section 16(5) does not authorise.

p. 2
02

Whether the second Company's alleged 1999 formation and 2002 incorporation were overlooked

Holding

The certificate of incorporation showed incorporation on 9th February 2006; the 1999 claim was never canvassed and had no documentary support.

Reasoning

The Court found the record contradicted counsel's assertion: the certificate of incorporation showed incorporation on 9th February 2006, not 2002. The claim of 1999 formation was not canvassed during the hearing and no documentary proof was availed. The documents on the record, particularly the certificate of incorporation, were treated as conclusive on the point.

p. 2

Legal principles established

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  • An application for interpretation of an award under Section 16(5) of the Trade Disputes Act cannot be used as a vehicle to appeal against or re-litigate issues already decided in the award; such an application is an abuse of process and may be summarily rejected.

Court orders

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  1. 1.The application for interpretation of the award is summarily rejected as untenable, frivolous, vexatious and an abuse of the Court process
  2. 2.The first Company (Candy Kenya Ltd) is ordered to implement the award immediately
Jurisdiction invoked
Section 16(5) of the Trade Disputes Act, Cap. 234 (Laws of Kenya, now repealed)

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, "Benori Agencies & Services Ltd v Bakery, Confectionary, Manufacturing & Allied Workers’ Union; Candy Kenya Ltd (Interested Party) (Cause 101 of 2006) [2008] KEIC 2 (KLR)", Case Analysis (2008). Cause 101 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2008/2/eng@2008-02-13

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