[2013] KEELRC 879 (KLR)
The court found that the consent filed in court could not be admitted or adopted as an order of the court because one of the Grievants, Hezron Guyo, expressly disowned the consent and denied signing it or receiving any settlement. The court emphasized that the consent was not negotiated with the involvement of the...
Source-derived case information.
- Citation
- [2013] KEELRC 879 (KLR)
- Parties
- Applicant: Kenya Petroleum Oil Workers Union; Respondent: Abdallah Fathia Salim/Digo Road Kobil Service Station; Respondent: Kenol Kobil Co Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 118 of 2013
- Procedural Posture
- Employment and Labour Cause / Interlocutory Ruling on Consent and Further Directions
- Outcome
- Consent not adopted; matter to proceed unless valid settlement reached.
- Judges
- MSA Makhandia
- Legal Topics
- Unfair Termination, Settlement Agreements, Trade Union Representation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Petroleum Oil Workers Union
Applicant
Abdallah Fathia Salim/Digo Road Kobil Service Station
Respondent
Kenol Kobil Co Limited
Respondent
Procedural Posture
Employment and Labour Cause / Interlocutory Ruling on Consent and Further Directions
Legal Issues
- 1 Whether the consent filed in court was valid and binding on the parties.
- 2 Whether the court should adopt the consent as an order of the court.
- 3 Whether the alleged settlement was properly negotiated through the parties' representatives.
Ratio Decidendi
The court found that the consent filed in court could not be admitted or adopted as an order of the court because one of the Grievants, Hezron Guyo, expressly disowned the consent and denied signing it or receiving any settlement. The court emphasized that the consent was not negotiated with the involvement of the union or the parties' representatives, which is essential in employment disputes involving unionized employees. The court held that, in the absence of a valid and properly executed consent, and given the Industrial Court's duty to promote genuine conciliation, the purported settlement could not be recognized. The parties were directed to negotiate through their proper...
Court Disposition
Consent not adopted; matter to proceed unless valid settlement reached.
Orders
- The consent filed on 30 September 2013 is not admitted or adopted by the court.
- Parties are at liberty to negotiate through their representatives; failing which, the Cause will proceed to hearing.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT MOMBASA
(BIMA TOWERS)
CAUSE NO. 118 OF 2013
KENYA PETROLEUM OIL WORKERS CLAIMANT
v
ABDALLAH FATHIA SALIM/DIGO
ROAD KOBIL SERVICE STATION 1st RESPONDENT
KENOL KOBIL CO LIMITED 2nd RESPONDENT
RULING
The Kenya Petroleum Oil Workers Union filed a Claim against Abdallah Fathia Salim trading as Digo Road Kobil Service Station on 20 May 2013. The issue in dispute was stated as wrongful and unfair termination of Mr. Hezron Guyo and James Macharia.
On 27 August 2013 the parties appeared in Court and I directed that they attempt out of court settlement failure to which the Cause would proceed to hearing on 2 October 2013.
On 2 October 2013 Mr. Raphael Olala, Branch Secretary of the Claimant union informed the court that the parties had not negotiated but that he had been shown a consent filed in court on 30 September 2013 signed by the Grievants and the 1st Respondent.
The Court directed the Deputy Registrar to issue summons to the Grievants to attend court to explain how the consent was signed.
The first Grievant Hezron Guyo attended court on 10 October 2013. The Grievant informed the Court under oath that he did not sign the consent or the notice of discontinuance of the suit, both dated 3 September 2013 and filed in court on 30 September 2013. He further denied receiving Kshs 15,000/- in settlement.
The 1st Respondent’s Manager Mr. Swaleh Muhsin Adbdallah also testified and stated that he reached an agreement with the Grievants directly without involving the Union because it had a fixed mind, and his Advocate.
The consent in issue has been disowned by one of the Grievants. The consent was allegedly negotiated when the Cause had been filed. The respective parties’ representatives were not involved in the preparation of the consent.
Although the Industrial Court by its very nature is supposed to promote conciliation, in the circumstances of this case the Court declines to admit and or adopt the consent. The parties are free to negotiate through their representatives failure to which this Cause will proceed to hearing.
Regarding the complaint of assault by Mr. Swaleh Muhsin Abdallah the same has been reported to the Police and it is within their competence to carry appropriate investigations and take any consequent action.
Delivered, dated and signed in open Court in Mombasa on this 8th day of November 2013.
Radido Stephen
Judge
Appearances
Mr. Olala Branch Secretary for Union
Ms. Salma instructed by Aboge & Co Advocates for 1st Respondent