REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI.
(Before: Charles P. Chemmuttut, J.,
O.A. Wafula & J.M. Kilonzo, Members.)
CAUSE NO. 120 OF 2005.
(In the matter of an amended order arising from the award
of Murtaza Jaffer, J., P.M. Osero & J.G. Ngolo, Members.)
KENYA HOTELS & ALLIED WORKERS’ UNION...................................................Claimants
v.
SOUTHERN PALMS BEACH RESORT ...........................................................Respondents.
and
KENYA UNION OF DOMESTIC, HOTELS, EDUCATIONAL INSTITUTIONS,
HOSPITALS & ALLIED WORKERS........................................................... Interested Party.
Issue in Dispute:-
“Refusal to sign Recognition Agreement”.
No appearance for the Claimants (hereinafter called the first Union).
No appearance for the Respondents (hereinafter called the Resort).
No appearance for the Interested Party (hereinafter called the second
Union).
INTERPRETATION OF THE AMENDED ORDER.
On 13th July, 2006, the Court made the following amended or modified order to the award in this matter, dated 16th December,
2005:-
“With the foregoing discussion in view, the Court deems it fit or proper to find out the exact and true wishes of the unionisable employees regarding their union membership; and the best way to do this is by giving the unionisable employees another opportunity to express their wishes through a secret ballot. Accordingly, the Court directs Mr. Benson Okwayo of the EPD to repeat the exercise and find out through a secret ballot and with reasonable access to the unionisable employees (excluding seasonal and casual workers) and in the presence of both parties’ representatives, the Registrar of this Court or his representative and the Provincial Labour Officer or his representative, to which of the two trade unions the majority of the unionisable employees wish to belong. The exercise should be completed within one month from the date of this amended or modified order, and the Court will make its final decision immediately on receipt of the results of the secret ballot.”
This application for interpretation of the amended order in Form “F”, under Section 16(5) of the Trade Disputes Act, Cap. 234, Laws of Kenya (which is hereinafter referred to as the Act), was presented to the Court by Mr. Salim wa Mwawaza, Executive Officer, F.K.E., for the Resort on 7th August, 2006, accompanied by a memorandum in support thereof. In the said memorandum, Mr. Mwawaza is seeking interpretation of the amended order mainly on the following grounds:-
(i) That the award (order) is in conflict and violates Sections 5(2), 16(6) and 17(1) and (2) of the Act.
(ii) That the order is in conflict with Section 80 of the Constitution.
(iii) That the order will adversely affect the business operations of the Resort in both finance and publicity.
On careful reading of the memorandum in support of the application for interpretation and the annexures thereto, we are of the considered opinion that the amended order is not in contravention of the provisions of the Act and Section 80 of the Constitution; but, on the contrary, the amended order will in fact foster industrial peace and harmony in the Resort and bring or put to an end unions’ rivalry for recognition. In the circumstances, the application for interpretation of the amendend order is rejected summarily as untenable and devoid of merit.
Mr. Benson Okwayo is directed to proceed with the exercise forthwith.
DATED and given in Nairobi this 10th day of August, 2006.
Charles P. Chemmuttut, MBS.,
JUDGE.
O.A. Wafula, J.M. Kilonzo,
