[2007] KEHC 2187 (KLR)
The High Court held that the application before it was not a fresh suit but an enforcement proceeding for an award already determined by the Industrial Court. Therefore, the procedural requirements for representative suits under Order 1 Rule 8(2) of the Civil Procedure Rules did not apply. The court further found...
Source-derived case information.
- Citation
- [2007] KEHC 2187 (KLR)
- Parties
- Applicant: Kenya Union of Commercial Food & Allied Workers; Respondent: Birking Industrial Services (BIS) Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 942 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection and Enforcement Application
- Outcome
- preliminary objection dismissed; application for enforcement allowed
- Judges
- JL Osiemo
- Legal Topics
- Enforcement of Awards, Preliminary Objection, Representative Suits, Trade Disputes, Industrial Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Commercial Food & Allied Workers
Applicant
Birking Industrial Services (BIS) Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection and Enforcement Application
Legal Issues
- 1 Whether the application for enforcement of the Industrial Court award is defective for failing to comply with Order 1 Rule 8(2) of the Civil Procedure Rules regarding representative suits.
- 2 Whether the High Court can enforce an Industrial Court award by way of Notice of Motion under the cited provisions.
Ratio Decidendi
The High Court held that the application before it was not a fresh suit but an enforcement proceeding for an award already determined by the Industrial Court. Therefore, the procedural requirements for representative suits under Order 1 Rule 8(2) of the Civil Procedure Rules did not apply. The court further found that the application was properly brought under the relevant provisions of the Civil Procedure Rules and the Trade Disputes Act, which allow for enforcement of Industrial Court awards by way of Notice of Motion. The respondent's preliminary objection was dismissed, and the applicant's application for enforcement was allowed in terms of the prayers sought.
Court Disposition
preliminary objection dismissed; application for enforcement allowed
Orders
- The respondent's preliminary objection is dismissed.
- The applicant's application for enforcement of the Industrial Court award is allowed in terms of prayers (i), (ii), and (iii) of the Notice of Motion dated 5th September 2006.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 942 of 2006
KENYA UNION OF COMMERCIAL FOOD & ALLIED WORKERS.....PLAINTIFFS
VERSUS
BIRKING INDUSTRIAL SERVICES (BIS) LTD……….......….……….DEFENDANT
RULING
The Applicant, Kenya Union of Commercial Food & Allied Workers were awarded Kshs.22,514,956. 10 by the Industrial Court of Kenya
use No.118 of 1999 and Cause No. 59 of 2000. In order to enforce the award they filed a Notice of Motion under the provisions of Order XXXV Rule 2 & 3 of the Civil Procedure Rules. When the matter came up for hearing, Mr. Thuo counsel for the Respondents raised a Preliminary Objection on the ground that the application is based on a defective suit in that the suit involves 102 claimants and the suit should have come to court under Order 1 Rule 8(2) of the Civil Procedure Rules which provides:-
“1: 8(2)” The court shall direct the plaintiff to give Notice of Institution of the suit to all persons either by personal service or by public advertisement as the court in case may direct.”
The Preliminary Objection is opposed by Mr. Aswani. With due respect to counsel for the Respondent - this is not a fresh suit.
The dispute was heard and concluded by the judge of the Industrial Court and what comes to the High Court is an application for the enforcement of the Industrial Court Award.
The application for the Enforcement of the Industrial Court Award is brought by way of Notice of Motion under the provisions of Section 3A of the Civil Procedure Act Order XLV Rule 17 of the Civil Procedure Rules and Section 15(2) and Section 17 of the Trade Disputes Act Cap 234.
Section 15(2) of the Trade Disputes Act provides:
“15 (2) Without prejudice to any other remedy, any compensation awarded under this Section may be recovered summarily as a civil debt.”
Section 17 of the Trade Disputes Act provides:-
“17 (2)” The award or decision of the Industrial Court shall be final.
(2) The award, decision or proceedings of the Industrial Court shall not be questioned or reviewed, and shall not be restrained or removed by prohibition injunction, certiorari or otherwise, either at the instant of the Government or otherwise.”
Order XLV Rule 17 of the Civil procedure Rules provides:-
“XLV – 17” The court shall on request enter judgment according to the award.”
The application for the enforcement of an Industrial Award shall be made by way of Notice of Motion through a Miscellaneous Application.
For the reasons stated above the Respondent’s Preliminary Objection is dismissed. Consequently the Claimants/Applicant’s application is allowed in terms of Prayers (i), (ii) and (iii) of the Notice of Motion dated 5th September 2006.
Dated and delivered at Nairobi this 30th day of May 2007.
J.L.A. OSIEMO
JUDGE