Case ID:162548

Daniel Njuguna Chege & 4 others v Tusker Mattresses Limited [2020] eKLR

Case Metadata

Case Number:

Cause 1362 of 2016

Parties:

Daniel Njuguna Chege, Charles Akwava Andrew, Timothy Mutegi, Peter Thuvu & Victor K Kogude v Tusker Mattresses Limited

Date Delivered:

03 Jul 2020

Case Class:

Civil

Court:

Employment and Labour Relations Court at Nairobi

Case Action:

Ruling

Judge(s):

Radido Stephen Okiyo

Citation:

Daniel Njuguna Chege & 4 others v Tusker Mattresses Limited [2020] eKLR

Advocates:

Nyabena Nyakundi & Co. Advocates for Claimants

Kanchory & Co. Advocates for Respondent

Court Division:

Employment and Labour Relations

County:

Nairobi

Advocates:

Nyabena Nyakundi & Co. Advocates for Claimants

Kanchory & Co. Advocates for Respondent

History Advocates:

Both Parties Represented

Case Outcome:

Motion dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 1362 OF 2016

DANIEL NJUGUNA CHEGE...............................1

st

CLAIMANT

CHARLES AKWAVA ANDREW.........................2

nd

CLAIMANT

TIMOTHY MUTEGI............................................3

rd

CLAIMANT

PETER THUVU.....................................................4

th

CLAIMANT

VICTOR K KOGUDE...........................................5

th

CLAIMANT

v

TUSKER MATTRESSES LIMITED...................RESPONDENT

RULING

1. Before the Court is a motion filed by the Respondent on 4 March 2020 seeking orders

1. …

2. …

3.

THAT

the Honourable Court be pleased to review its Judgment dated and delivered on 7

th

February 2020 as it relates to payment of gratuity to the 3

rd

, 4th and 5

th

Claimants.

4.

THAT

this Honourable Court be pleased to clarify whether the Respondent is entitled to deduct the pension received by the 1

st

and 2

nd

Claimants from any gratuity payable to the said 1

st

and 2

nd

Claimants in view of the need to avoid double social compensation as envisioned under section 35(6) of the Employment Act, 2007 and established by case law.

5.

THAT

meanwhile there be a

STAY OF EXECUTION

of the Judgment of the Court dated and delivered on 7/2/2020 and any consequential decree.

6.

THAT

there be an extension of the 21 day grace period given under the Judgment dated and delivered on 7/02/2020 to allow the Respondent time to compute and pay the proper terminal benefits and gratuity payable to the Claimants subject to the clarification, orders and directions to be issued by the Court.

7. …

2. The main grounds advanced in support of the application were that there was an error on the face of the record when the Court found that the 3

rd

to 5

th

Claimants as supervisors were not members of the Kenya Union of Commercial, Food and Allied Workers (Union) but went ahead to award them gratuity, and that the 1

st

and 2

nd

Claimants had already been paid their pension under the Staff Pension Scheme and it amounted to double social compensation when they were awarded gratuity.

3. The Respondent filed its submissions on 19 June 2020 in which it reiterated the assertions on the face of the motion and the supporting affidavit.

4. In the 1

st

Claimant’s replying affidavit filed on 18 May 2020, (but brought to the attention of the Court only on 1 July 2020) and the submissions filed electronically on 1 July 2020, the Claimants asserted that they were all union members and were not in any case excluded from eligibility to gratuity under clause 24 of the collective agreement.

5. It was also contended that the application merely raised questions the Court had addressed its mind to.

6. Finally, it was urged that the review jurisdiction was not open to the Respondent and that it should have preferred an appeal.

7. The Court has considered the motion, affidavits and submissions and come to the conclusion that the application has no merit.

8. Firstly, the Respondent though moving the Court under the

Review Jurisdiction

is challenging the factual and legal findings by the Court such as whether the Claimants were unionisable and/or entitled to gratuity under the collective agreement between it and the Kenya Union of Commercial, Food and Allied Workers.

9. Such a challenge, in the view of this Court, touches on the appreciation of the evidence by the Court and ought to be attacked through an Appeal rather than under the guise of a review, or seeking

clarification

.

10. In reaching the conclusion, the Court finds comfort in the words of the Court of Appeal in

Francis Origo & another v Jacob Kumali Mungala

(2005) eKLR that

an erroneous conclusion of law or evidence is not a ground for a review but may be a good ground for appeal.

11. Secondly, under Article 41(2) of the Constitution, every worker, without exception has the right to join and participate in the activities of a trade union unless expressly restricted (the right can be limited by dint of Article 24 of the Constitution).

12. The Constitution itself has not restricted or limited the right but left it to legislation and/or the agreement between the social partners.

13. The primary legislation governing the social partners, the Labour Relations Act has not out rightly limited the cadre of employees who cannot join a trade union, but at section 59(1)(b) and (3) leave no doubt that all unionisable employees are bound by and enjoy benefits and rights agreed in a collective agreement.

14. In this respect, the social partners agreed in the Industrial Relations Charter on the category of employees excluded from joining a trade union.

15. In determining the employees who are excluded, the Court does not merely look at the title or designation of the employee. The party asserting that an employee is excluded must show through evidence that the employee performs management and/or confidential functions.

16. Apart from a general statement that some of the Claimants had been promoted, there was no demonstration that they were not unionisable. Even the Industrial Relations Charter was not referred to by the Respondent.

17. Apart from the Industrial Relations Charter, unions and employers ordinarily agree on the categories of employees who are unionisable and/or excluded from membership of a union in a recognition agreement. The Respondent did not produce a copy of the recognition agreement to establish the category of unionisable employees.

18. The evidence before the Court was that the 3

rd

to 5

th

Claimants were section heads and supervisors, positions whose terms and conditions of employment were expressly covered at Part 1 of the collective agreement produced in Court.

19. Thirdly, although contending that the 1

st

and 2

nd

Claimants were paid their pensions, the Respondent did not present any records or evidence of payment during the hearing on the merits. It is only after Judgment that the Respondent exhibited pension pay records without even explaining why the records were not produced at the first instance while it was aware of the head of the claim. With the slightest due diligence, the Respondent could have produced the records.

20. Equally, the Respondent did not advance any arguments founded on the need to

avoid double social compensation

in the Response or during the hearing despite being put on notice that the Claimants were seeking gratuity after being paid pension. It is also telling that the parties mutually agreed in 2013 to clause 24 on gratuity fully aware of the existence of section 35(5) & (6) of the Employment Act, 2007 and they could have easily and simply excluded the one or the other. In any case, the Court did not award any of the Claimants

service pay

as contemplated under the section.

21. Lastly, in the humble opinion of the Court, the issues brought forth under the guise of Review jurisdiction were questions better left to appellate jurisdiction as the Court set out reasons at paragraphs 25 – 27 and 29 of the Judgment.

22. It appears like the Respondent wants to have a second go to fill the weaknesses which encumbered its presentation of the defence.

23. The Court declines to exercise its review jurisdiction and the motion is dismissed with costs to the Claimants.

Delivered through Microsoft teams/email, dated and signed in Nairobi on this 3

rd

day of July 2020.

Radido Stephen

Judge

Appearances

For Claimants Nyabena Nyakundi & Co. Advocates

For Respondent Kanchory & Co. Advocates

Court Assistant Judy Maina