Nairobi court reinstates workers sacked 20 years ago

Thirteen workers who spent two decades in the cold after being wrongfully sacked have been reinstated after a prolonged court case.

Their employer, the Naivasha Municipal Council, will also pay them a total of Sh30 million in accrued wage arrears.

Justice Mathews Nderi Nduma of the Industrial court in Nairobi made the ruling on Friday, after dismissing the case in which the Naivasha Municipal Council wanted the award quashed.

Justice Nderi upheld submissions by lawyer Katunga Mbuvi for the Local Government Workers Union which was enjoined in the case as an interested party.

The workers won the award in 2007 after suing their employer for wrongful dismissal.

On Friday, the judge dismissed the council’s application that had sought to set aside the award delivered on August 31 2007 and ordered it to pay the legal costs accrued from the fresh litigation.

The 13 employees at the then Naivasha Municipal Council were summarily dismissed between May 28, 1993 and June 30, 1993 over alleged fraud.

Mr Mbuvi had faulted the employer, saying the employees were sacked unfairly without due conformity with the Public Service Commission Regulations and Disciplinary procedures and urged the court to reinstate them into their respective duties.
An order was delivered in their favour on July 16, 2010 when then-presiding judge, Paul Koskei, allowed the demand for reinstatement and directed the Town Clerk to allocate the workers their former duties “without loss of their full salary and all other benefits within 20 days from the date of the award.”
ABUSE OF THE COURT PROCESS
However, feeling dissatisfied with the turn of events, the council sought judicial review claim seeking to quash the award.

Lawyer Mbuvi submitted that the Council submitted their request after the expiry of the six-month period allowed for challenging the initial proceedings and argued the case be knocked out on the apparent technicality.

He said the application for judicial review the council sought was “an abuse of the court process since the industrial court has the jurisdiction to hear and determine the dispute.”

He submitted that when the Industrial Court awarded the workers, it exercised its powers as duly set out in the Labour Institutions Act 2007 “which gives it a mandate to hear, determine and give appropriate remedies.”

“The industrial court judge did not err in reinstating the applicants former employees as provided in the Act where the circumstances so warranted,” Mr Mbuvi submitted.

He told judge Nderi that the award “was not unreasonable as the dismissal itself was unfair and did not conform to the law.”

The judge concurred with the lawyer and reaffirmed that the Council was rendered time-barred after it failed to file its application within six months after the date of the initial proceedings.

“The ex-parte applicant filed chamber summons on December 2, 2010 seeking leave to apply for an order to quash the award the industrial court made on August 31 2007,” the judge observed.

He said the council erred when it chose to first seek the review of the Industrial Court which was rejected on July 16, 201.

“For the purpose of limitation, time must run from the date of the initial award on August 31 2007 and not the subsequent ruling of July 16, 2010…there was no application for extension of time,” he explained.

He said the council failed to follow procedure and therefore its prayers could not be granted.