IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI.
(Before: Charles P. Chemmuttut, J.
A.K. Kerich & S.M. Maithya, Members.)
CAUSE NO.86 OF 1999.
KENYA RAILWAY WORKERS’ UNION............................................................Applicants.
- v -
KENYA UNION OF EMPLOYEES OF VOLUNTARY ASSOCIATIONS,
TRADE UNIONS & ALLIED ORGANISATIONS.............................................Respondents.
Issues in Dispute:-
1. Clause I - Period of Agreement.
2. Clause 5 - Medical.
3. Clause 6 - Overtime.
4. Clause 7 - Wages.
5. Clause 8 - Allowances.
6. Clause 10 - Leave.
7. Clause 16 - Gratuity.
8. Clause 18 - Transfers.
9. Clause 20 - Ration.
10. Clause 21 - Casual Relief Employees.
R.A. Kanani, Deputy Secretary General, for the Applicants (hereinafter called the 1st Union).
O.B. Otieno, Secretary General, for the Respondents (hereinafter called the 2nd Union).
R U L I N G.
The Minister for Labour, in exercise of the powers conferred upon him by Section 8 of the Trade Disputes Act, Cap.234, Laws of Kenya (which is hereinafter referred to as the Act) referred this dispute to the Court on 22nd September 1999 for adjudication and determination; and his reference, together with the statutory certificate from the Labour Commissioner under Section 14, subsection (9)(e) of the Act, were received by the Court on 28th September 1999. The 2nd Union submitted their memorandum on 3rd March 2000; and the dispute was heard ex-parte on 8th June 2000, in default of appearance and reply statement by the 1st Union. On 9th June 2000, the Secretary General of the 1st Union wrote to me that he was unable to attend or appear before the Court on 8th June 2000 due to oversight of the hearing date and also prayed that the ex-parte hearing be vacated and the case should be heard inter-partes. On 12th June 2000, the said Secretary General wrote to me again wherein he regretted the 1st Union’s inability, due to financial constraints, to increase the employees’ wages or salaries and other benefits beyond the increments which were awarded to them on 1st September 1996. They (1st Union) also filed a statement of their inability on 26th June 2000. In the circumstances, I advised the parties to negotiate and explore the possibility of an amicable settlement. The parties were, however, unable to compromise due to the intransigent and recalcitrant attitude of the Secretary General of the 2nd Union. Accordingly, the application by the 1st Union to be allowed to defend the case on merits was heard on 18th September 2000.
In his brief submission, Mr. Kanani reiterated the 1st Union’s inability as stated hereinabove on the ground that they (Union) were financially just drudging along on their way. He, therefore, urged the Court to vacate the ex-parte hearing and invoke its inherent and discretionary powers by hearing the case de novo inter-partes.
In reply, Mr. Otieno strenuously resisted the demand to re-open the matter on the ground that the 1st Union acted in bad faith by deliberately failing to attend the Court during the hearing of this dispute, thus occasioning the ex-parte hearing of the case. In any case, he said, the Court has no power to review the ex-parte hearing and prayed that the ex-parte award be delivered.
I have carefully gone through the submission of the parties and appreciate the anxiety of the 2nd Union that the matter should be expeditiously disposed of and as conveniently as possible. But whether the 1st Union had acted in bad faith or mala fide in failing to attend Court on 8th June 2000 is a question of fact and it would depend upon the evidence and circumstances of the case. In my opinion, I find that the 1st Union did not act in bad faith when they failed to attend Court on the said date. This was purely an oversight on their part, and for this reason I set aside or vacate the ex-parte hearing and order that this dispute be heard or proceed de novo inter-partes.
On consultation, the members agreed with this decision.
DATED and delivered at Nairobi this 23rd day of February, 2001.
Charles P. Chemmuttut,
JUDGE.