IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI.

         M.A. Warrakah & M.M. Jahazi, Members.)

CAUSE NO.98 OF 2002.

TRANSPORT & ALLIED WORKERS’ UNION...........................................Claimants.

v.

KENYA BUS SERVICES LTD..............................................................Respondents.

 “Redundancy of 491 employees” (hereinafter called the grievants), namely:-

D.A.M. Enonda, Advocate, of M/S. Enonda, Makoloo, Makori & Co., Advocates, for the Claimants (hereinafter called the Union).

(a)    declared that all the agreements entered into and signed by the parties on 28^th September, 30^th October and 21^st November, 2001, as null and void and of no legal effect, and

(a)   Bustrack Division – this ran city commuter bus operations from suburb to city centre through to suburb and back to city centre.

(b)   Metro Shuttle Division – this ran the mini bus commuter services between suburbs and the city centre but not beyond.

(c)   Express Division – this ran countrywide operations from Nairobi to other cities or towns in Kenya.

“RE: NOTICE TO DECLARE REDUNDANCY

Mr. Macharia admitted that the Company indeed transferred a portion of its business to its sister company, Bustrack Ltd., on 8^th November, 2001; and the fact that the business transfer had been gazetted made it public knowledge. However, the disclosure of this specific fact would have made absolutely no difference to the poor state of the Company’s financial affairs, but it was merely to put in place the plans to restructure and re-organise it. (Company Ann.2). The fact that the three divisions of the Company had to be split into two concerns and the business transferred as hereinabove was ample evidence to show that the Company was not in good financial condition, otherwise there would have been no need to split it up. But this was only done to ensure long-term viability of the Bustrack Division and this fact was within the knowledge of the Union and the grievants. In any case, the learned counsel asserted, there was no duty on the part of the Company to disclose information of any nature whatsoever to the employees during negotiations. He pointed out that the contract of employment and the collective bargaining agreement between the parties are not contracts of utmost good faith (uberrimae fidei).   Notwithstanding the aforesaid, the learned counsel maintained that the Company negotiated with the Union, on behalf of the grievants, in good faith and in accordance with the provisions of Clause 3.3 of the Recognition Agreement and the parties’ collective bargaining agreement in force at the material time (Company Anns.6 and 7).

(a)    the demand by the Union be rejected as baseless and untenable.

(b)     this Hon. Court do declare that the settlements or agreements entered into and signed by the parties on 28^th September, 30^th October and 21^st November, 2001 as valid, binding and enforceable.

(a)    that all the settlements or agreements entered into and signed by the parties on 28^th September, 30^th October and 21^st November, 2001 as null and void, and

Charles P. Chemmuttut,

JUDGE.