By FAUSTINE KAPAMA-Judiciary
THE High Court’s Labour Division has dismissed the
application for revision lodged by Exim Bank (T) Limited, challenging the Commission
for Mediation and Arbitration (CMA) Award for payments of 75m/- compensation to
former Chief Cashier David Mumbii.
Judge Augustine Rwizile ruled against the Bank, the
applicant, after upholding one ground of objection raised by Mumbii, the
respondent, through his counsel that the application was time barred.
“I entirely agree with (the counsel for the
respondent) that this application is filed out of time. It should be dismissed
as I hereby do,” he declared.
The judge noted upon going through the CMA
proceedings that there were numerous decisions which contain the same labour
dispute number litigated by the same parties.
Such decisions, he observed, include the one dated January
29, 2019, ruling dated May 03, 2019, ruling of November 8, 2019, ruling dated June
29 2020 and the correction of the award made on April 29, 2021.
However, according to him, the decision sought to be
challenged was made on January 29, 2019 by the CMA, which contained errors that
rendered it inexecutable by the court.
“The Deputy Registrar of this Court, on October 21, 2020,
in the execution of the award directed the CMA to correct the errors in the
award. The same was done on April 29, 2021,” he said.
During hearing of the application, the counsel for
the applicant had alleged that the same was served on the applicant on same day
it was issued. It was his view that time begun to run on the same day it was
served on the applicant.
The counsel meant it is on that day when the
applicant was made aware of the decision as it is in terms of section 91(1) (a)
of the Employment and Labour Relations Act.
In his considered
view, the judge pointed out that the applicant had tried to set aside award
dated January 29 in vain, whose application was heard ex-parte (in the presence
of one party). This was vivid as well as the ruling dated November 18, 2019.
“It is therefore to my understanding that the
applicant ought to have challenged the decision when it was made in 2019. Events
of rectifying the award were made after the execution proceedings of 2020. I do
not think time begun to run in 2021 when an award was rectified,” he said.
Above all, the judge said, the applicant could not indicate
clearly which decision the court has to deal with in the application for revision
he had filed.
The respondent was an employee of the applicant in
the position of bank teller and was later promoted to a chief cashier position from
January 26, 2009 until when he was terminated on January 9, 2013 for gross
misconduct.
He instituted a complaint at the CMA whereby the
award was in his favour. The applicant was ordered to compensate the respondent
for unfair termination and be reinstated. Having been dissatisfied with the
award, the applicant filed a revision to the High Court, which quashed the
award.
On July 2, 2018, the respondent refilled the labour
dispute. The matter at CMA was heard ex-parte and an ex-parte award was pronounced
in favour of the respondent on January 29, 2019.
The application for execution was filed, but struck
out for having arithmetical errors on the amount of 75m/- awarded instead of
the amount recorded of 75bn/-. The award was corrected on April 29, 2021 based
on the Deputy Registrar's directive at the execution
It was at that point in time when the applicant
decided to file the application for revision in question to challenge the
entire award through calling for, examine, revise and set aside the entire-proceedings,
decision and orders by the CMA.
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