[2017] KEELRC 1606 (KLR)
The court found that the applicant's application was fundamentally flawed as it sought both enforcement of the judgment through contempt proceedings and a stay of the same judgment in a single application. The court held that such contradictory prayers cannot be entertained simultaneously. Furthermore, the court...
Source-derived case information.
- Citation
- [2017] KEELRC 1606 (KLR)
- Parties
- Applicant: Kenya Engineering Workers Union; Respondent: Kenya Marine Contractors EPZ
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 742 of 2015
- Procedural Posture
- Employment Cause / Ruling on Post Judgment Application
- Outcome
- application dismissed
- Judges
- J Rika
- Legal Topics
- Redundancy Procedure, Contempt of Court, Collective Bargaining Agreement, Enforcement of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Engineering Workers Union
Applicant
Kenya Marine Contractors EPZ
Respondent
Procedural Posture
Employment Cause / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the applicant can simultaneously seek enforcement and stay of judgment through the same application.
- 2 Whether the respondent's director should be held in contempt of court for alleged non-compliance with the judgment.
- 3 Whether the judgment should be stayed pending signing and registration of the collective bargaining agreement.
Ratio Decidendi
The court found that the applicant's application was fundamentally flawed as it sought both enforcement of the judgment through contempt proceedings and a stay of the same judgment in a single application. The court held that such contradictory prayers cannot be entertained simultaneously. Furthermore, the court noted that the applicant had previously represented to the court that a collective bargaining agreement existed and was violated, but now sought to stay the judgment pending its signing and registration, which was inconsistent. The court emphasized that it was not intended for the judgment to result in ongoing judicial supervision of the respondent's redundancy processes. The...
Court Disposition
application dismissed
Orders
- The application filed on 12th January 2017 is rejected.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MOMBASA
CAUSE NUMBER 742 OF 2015
BETWEEN
KENYA ENGINEERING WORKERS UNION ………...CLAIMANT
VERSUS
KENYA MARINE CONTRACTORS EPZ ……......RESPONDENT
RULING
1. The Court delivered a Judgment in this dispute, on 2nd December 2016, giving the following Orders:-
a) It is declared redundancy was based on valid reasons, but flawed on procedure.
b) The Respondent is at liberty to go on with the process, while avoiding such missteps as pointed out above, and shall pay to the Claimant’s Members all their redundancy benefits under Section 40 of the Employment Act and the prevailing CBA.
c) No order on the costs.
2. On 12th January 2017, barely a month after the Judgment, the Claimant was back in Court, with an Application seeking the following main orders:-
a) The Respondent’s Director Simon Philips is arrested and jailed for contempt of Court.
b) The Judgment delivered on 2nd December 2016 is stayed, pending signing and registration of the CBA, as per Judgment in Cause No. 152 of 2012 and Appeal No. 28 of 2015.
3. The Application was heard on 22nd February 2017.
Court Finds:-
4. The Application is fundamentally flawed from the very outset.
5. The Claimant seeks to enforce Judgment, through contempt proceedings, while in the same breath, asks the Court to stay Judgment pending signing and registration of the CBA. Allusion is made to other Court Actions, which were not brought to the attention of this Court during trial.
6. It is not possible to have orders of enforcement and stay of a Judgment, simultaneously, under the same proceedings.
7. The Claimant misled the Court during trial on the presence of a CBA concluded between the Parties. In the Pleadings leading to the Judgment of 2nd December 2016, the Claimant repeatedly referred to violation of the Employment Act and Clause 24 of the CBA. The Claimant now seeks stay of Judgment pending signing and registration of the CBA.
8. It was not intended that the Judgment of 2nd December 2016, results in the Court being drawn in, to supervise future redundancy processes at the Respondent.
9. It is imperative for Parties to await the outcome of pending Court Actions. The Claimant should not keep coming to Court piecemeal, with half-baked grievances, contradictory prayers, and alternative facts.
10. The Application filed on 12th January 2017 lacks coherence, and is rejected. No order on the costs. It is so ordered.
Dated and delivered at Mombasa this 24th day of March 2017.
James Rika
Judge