[2003] KEELRC 15 (KLR)

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI.

(Coram: Charles P. Chemmuttut, J.,

J.M. Kilonzo & A.K. Kerich, Members.)

CAUSE NO. 84 OF 2002.

KENYA CHEMICAL & ALLIED WORKERS’ UNION………………………Claimants.

v.

ASSOCIATED BATTERY MANUFACTURES (E.A.)LTD…………….Respondents.

Issue in Dispute:-

“Redundancy/Reorganisation” affecting the following employees (hereinafter called the grievants):-

1. Edward Kenga Karisa.

2. Paul Githua Njoroge.

3. John Thairu Maribie.

4. Chrispinus Wasike.

5. Bernard Muli Kitonga.

6. Paul Mwangi Muchene.

7. Peter Mwangi Macharia.

8. Eric S. Agwingi.

9. Wycliffe A. Omusebe.

10. David Irungu Kuria.

11. Peter Gitonga.

12. Mutuku Mandi.

13. Robert Mutuku.

14. Gibson Ithagu.

15. Wilson N. Kibira.

16. Julius Muriithi.

17. Manase Kavehi Kisia.

18. George Owino.

19. Felix Kariuki Ngunyi.

20. Joseph Kaniaru Njoroge.

21. Geoffrey Mwangi Muiruri.

22. Meshack Ondego.

23. James Mbuthia Gakuo.

24. Annettee Atabwa Machwara.

25. Martin Kungu.

26. Nicholas Owuor.

27. John Kiilu.

28. Daniel Ng’ang’a Kiarie.

29. Geoffrey M. Kilonzo.

30. Geoffrey Musungu Sagala.

31. Austin Musidia Imbale.

32. Benjamin Otsula.

33. John Muraguri Mwangi.

34. Omuseve O Japheth.

35. Wanjohi John Wangombe.

36. Waema Donald Mutulia.

37. Njuguna Patrick Kimani.

38. Gakunga Tirus Muturi.

39. Katiku Jameson Mutisya.

40. Muriithi David Waigwa

41. Gathua Robert Mwangi.

42. Warui George Gitingu.

43. Ndigah Benjamin Odwe.

44. Timothy M. Isadia.

45. James Muchemi Kariuki.

46. Kihu Alfred Njau.

47. Makumi Godfrey Nganga.

48. Gitari John Robert.

49. Githire Abel.

50. Mwangi Benson.

51. Kinuthia John.

52. Jane Kimani.

53. Kuria Paul.

54. Titus K. Mutiso.

55. Nzelu Ammlex.

56. Wachira Joseph Gichunju.

57. Weru Charity.

58. Kioko Nelson.

59. Emisiko Charles.

60. Emanuel M. Kiangi.

61. Francis Maina Mwangi.

62. Musembi Richard.

63. Kibue Joseph Kiarie.

64. Nguitui David Njoroge.

65. Ngugi Tabitha Wanjiku.

66. Ogutu Peter.

67. Nabule Moses Davis.

68. Karisa Robert.

69. Warui Peter Muchoki.

70. Jackson Stephen Mutua.

71. Indakwa Simon.

72. Mwangangi Nicholas.

73. Mutuota Pius.

74. Maina Samuel K.

75. Kilovia Julius Mutuku.

76. Okundi Maurice.

77. Golova Andrew Lugose.

78. Boniface Mutinda Mwania.

79. Geoffrey Chege Muraya.

80. Onesmus Muya Kamakya.

81. Patrick Wetindi.

82. Maina Benson Okeyo.

83. Ronald Ngala Ndege.

84. Daniel Lau Kitumbo.

85. John Ngatia Waigwa.

86. Zacheus Mutuma Muriithi.

87. Ali M. Faraji.

88. Michael Kin’goo.

89. Benson Kigori Nguru.

90. Samson Isoe.

91. Julius Opindi.

92. Martin N. Otiko.

93. Geoffrey Mwangi Ndungu.

94. Douglas Mage.

95. George Ishiva.

96. Philip Mutisya.

97. Robert Kalla Katiku.

F.A. Moriasi, Advocate, of Ombachi, Moriasi & Co., Advocates, for the Claimants (hereinafter called the Union).

J.A. Guserwa, Advocate, of J.A. Guserwa & Co., Advocates, for the Respondents (hereinafter called the Company).

A W A R D.

The Minister for Labour referred this dispute to the Court on 7th October, 2002, under powers vested in him by Section 8 of the Trade Disputes Act,Cap. 234, Laws of Kenya (which is hereinafter referred to as the Act); andthe reference together with the statutory certificates from the Labour Commissioner and the Minister himself under Section 14(9)(e) and (f), were received by the Court on 14th October, 2002. The learned counsel for the Union, Mr. Moriasi, submitted his main memorandum on 29th November, 2002, and further supplementary submissions on 4th and 21st February, 21st March and 11th April, 2003, while the learned counsel for the Company, Ms. Guserwa, filed her reply statement on 4th February, 2003. The dispute was heard on 24th February, 24th March and 14th April, 2003.

I have carefully read the written submissions and annexures of the parties, and have also heard at length the oral or verbal arguments of the learned counsel. Admittedly, the grievants lost their jobs consequent upon reorganisation of the Company based on a strategic plan covering the period 1999 to 2004; and they were paid all their terminal dues, includingProvident Fund entitlements, which they accepted, in full and final settlement of their respective claims, and signed Certificates of Clearance to the Company (see Company Ann.4). But the case of the counsel for theUnion, Mr. Moriasi, in a nutshell was that the services of the grievants were declared redundant mala fide because they were, inter alia, not consulted on the matter and were coerced by the management of the Company to accept their terminal dues. On the other hand, the learned counsel for Company, Ms. Guserwa, averred that this matter had been settled and the grievants, having derived benefits from the re-organisation, cannot be allowed to take a position or to make claims inconsistent with the compromise.

In conclusion, the learned counsel for the Union, Mr. Moriasi, prayed that:-

I.the grievants be reinstated to their jobs and be paid full salary and allowances with effect from 25th June 2001 until the date of re-instatement; or, in the alternative,

2. they be paid and awarded:-

(i)Three (3) months’ salary and allowances when the Company was closed down and the grievants were instructed to remain at the work station.

(ii)Properly negotiated redundancy package, or a package that the Court may deem just and fair, because the grievants were denied the right to be heard by the management of the Company.

(iii)Baggage allowance.

(iv)Full compensation.

The learned counsel for the Company, Ms. Guserwa, urged the Court to find that the Union was not competent to represent the grievants in

this matter, and that the case has no merit since the matter had been conclusively compromised or settled. In the circumstances, she prayed that the same be rejected or dismissed as not maintainable and incompetent.

The admitted position in this case is that there has been a re-organisation of the Company since 1999 and the grievants were paid their terminal dues in full and final settlement, which they willingly accepted and signed Certificates of Clearance to the Company in June 2001. Now the short question for consideration is whether the grievants could be allowed to raise this dispute, having already derived benefits from the compromiseor settlement. It is a well-settled principle of industrial law that theemployer has the power to re-organise the Company and reduce the employees’ strength on account of anticipated requirement and for better, efficient and economy of operation; and so long as such re-organisationof the Company and reduction of the employees’ strength is not characterized as mala fideor is actuated by a motive of victimisation, such a scheme of re-organisation and reduction cannot be questioned. In this case, the grievants have taken all their dues or derived benefits in accordance with the compromise or settlement. Therefore, they are estopped from alleging that the said compromise or settlement was null and void; and it is now too late in the day to go back on it. A compromise or settlement arrived at between parties must be given due weight and sanctity so as to maintain industrial peace and amity, and a party who accepts benefits thereunder cannot subsequently challenge it, or be permitted to approbate and reprobate in respect of the same matter by alleging that the compromise or settlement was not binding on him.

Since the grievants have taken all the benefits which accrued to them under the compromise or settlement, they cannot, therefore, be allowed

to disregard or challenge the same on some legal or technical grounds asinvalid, when it had been acted upon by the Company and an advantage taken by them. I am fortified in this view of the matter by the following authorities from Indian sub-continent or jurisdiction.

In Hussain Sahib & Others v. Hassan Bibi & Others, A.I.R. 1918 Mad.595,it was observed:-

“Actions and conduct of parties give rise to estoppel when such actions and conduct have produced alteration of circumstances so great that, without great loss and inconvenience, the parties cannot be put back in their original position.”

In the instant case, as a mentioned above, the Company has already paid all the dues under the compromise or settlement and now it cannot be put back in its original position because it would be well nigh impossible for it to realise the payments already made to the grievants.

In Union of India v. K.P. Mandal, A.I.R. 1958 Cal.415,it was observed:-

“Generally speaking, if a party has an interest to prevent an act being done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position ofothers is altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous license.

Held:that in the circumstances, although there could be no representation by A as to the actual competence of the arbitrator, the rule of estoppel will still bind him and will still prevent him from contending that M was not qualified under the terms of the agreement to arbitrate in the dispute”.

In Sishu Bala Ghose & Another v. Profullya Chandra Mondal & Others, P.L.D. 1962 Dacca 490,it was observed:-

“Although both the transfer and the agreement to transfer a reversionary interest are void, yet a reversioner may be estopped from claiming the reversion by his conduct if he has consented to an alienation by a widow or other limited heirs”.

There is nothing on the record, except the assertion by the learned counsel for the Union, Mr. Moriasi, to show that the grievants were not consulted, or that they were coerced by the management of the Companyto accept their terminal dues, and I cannot admit this bare statement. The learned counsel for the Company, Ms. Guserwa, has, therefore, rightly submitted that the Union was not competent and entitled to raise this dispute when the parties had compromised or settled the matter.

In the circumstances, the grievants, having enjoyed all the benefits under the compromise or settlement, cannot now come forward and say that the said compromise or settlement was not binding on them. Accordingly, the demand is rejected as misconceived and incompetent.

MEMBERS: We agree.

DATED and delivered at Nairobi this 3rd day of July, 2003.

Charles P. Chemmuttut,

JUDGE.