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IndustrialDismissedNot stated in the judgment text provided

Tailors & Textiles Workers Union v Ashton Apparels [Epz] (Cause 40 of 2008) (Employment and Labour) [2011] KEIC 33 (KLR)

Industrial Court of Kenya
6 May 2011
JRJAMES RIKAJLJ. LOKWEEDSD.K. SIELE
402 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court refused to reopen a 2008 recognition agreement award, ruling that a party given repeated chances to defend cannot keep litigation alive forever.

What this practically means

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Executive summary

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The Industrial Court at Nairobi, in a matter originating under the repealed Trade Disputes Act Cap 234, dismissed the respondent's Notice of Motion dated 22nd February 2011 which sought to set aside the Award on record and to be allowed to defend the claim out of time. The Award had been delivered exparte on 5th December 2008 after the respondent failed to attend court or file a memorandum of defence, and ordered the respondent to sign a Recognition Agreement with the claimant. The respondent was accommodated in 2010 with leave to defend out of time, but the claimant's application to vacate those orders succeeded after the respondent again failed to appear, and the Award was reinstated. A subsequent attempt to revisit the reinstatement was rejected, and a notice of appeal was filed but not pursued. Hearing the 2011 application argued by Mrs. Fundi for the respondent and M/S Guserwa for the claimant, the Court held that ample opportunity to defend had been given and repeatedly spurned, noted evidence that a recognition agreement had been signed in unclear circumstances, and concluded that there was no ground to justify interference with the Award. Invoking the principle that litigation must come to an end, the Court finalized the matter and rejected the application, with the members agreeing and ordering accordingly on 6th May 2011.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there are grounds to justify interference with the Award of 5th December 2008 reinstated on record
  2. 2.Whether the respondent should be allowed to set aside the Award and file a memorandum of defence out of time

Key legal issues

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01

Whether to set aside an exparte Award and permit late defence where prior indulgences were already granted

Holding

The application was rejected; no ground existed to interfere with the reinstated Award of 5th December 2008.

Reasoning

The Court traced the history: an exparte Award was made in 2008, indulgences were extended in 2010 allowing the respondent to defend, orders were vacated after the respondent again failed to appear, and a further attempt to revisit was rejected. The respondent then filed a notice of appeal but did not pursue it. The Court found ample opportunity had been given and repeatedly spurned, and that litigation must come to an end.

p. 2

Legal principles established

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  • Litigation must come to an end; a party who repeatedly spurns opportunities to defend cannot have the final Award disturbed.

Court orders

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  1. 1.Rejection of the Notice of Motion dated 22nd February 2011 seeking to set aside the Award and allow the respondent to defend
  2. 2.Confirmation that the matter is finalized, with the Award of 5th December 2008 remaining on record

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JR
majority

Wrote the judgment

JL
J. LOKWEEMEMBER
majority
DS
majority
Jurisdiction invoked
Dispute initiated under the repealed Trade Disputes Act Cap 234, Laws of Kenya; court seized of the matter under its continued jurisdiction over pending trade disputes

Relief refused

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Setting aside the Award on record and leave to file a memorandum of defence out of time

The respondent had ample opportunity to defend the claim but repeatedly spurned it; litigation must come to an end

p. 2

Costs

No costs order made in the judgment text provided

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We do not see any ground to justify interference with the Award on record. Litigation must come to end. This matter is finalized.
p. 2Finality of litigation and refusal to disturb Award
We are persuaded there was ample opportunity given to the respondent to defend the claim, but that opportunity was repeatedly spurned.
p. 2Abuse of court process by repeated non-attendance
The members agree, it is so ordered.
p. 2Final orders - unanimous decision of the bench

Issues in the judgment

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minor

The judgment does not state the case number, names of the parties, or any costs order.

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, "Tailors & Textiles Workers Union v Ashton Apparels [Epz] (Cause 40 of 2008)  (Employment and Labour) [2011] KEIC 33 (KLR)", Case Analysis (2011). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2011/33/eng@2011-05-06

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