On June 30, 2001, Kenya Power formally started mass layoffs in a bid to restructure operations and save the utility firm millions of shillings in costs. By March 19, 2003, when the retrenchment ended, the firm had sent home more than 300 workers in different departments, many of whom protested the secrecy in calculation of terminal dues.
And for the last 18 years, 332 individuals affected by the mass layoffs have been in court seeking a fresh tabulation of their dues, which would see Kenya Power part with Sh1.6 billion.
Aside from the terminal dues, the former Kenya Power workers are also seeking payment of millions they made in pension contributions for several years. They said the money was not released upon retrenchment.
The ex-workers argue that their employer irregularly deducted Sh179 million from their final salaries, and failed to release payments that had been made to the Kenya National Assurance Company as pension.
Kenya Power in its defence argues that the former workers have not filed any evidence to show that they are entitled to dues being claimed in the case.
The utility firm adds that it paid all dues to workers affected by the retrenchments.
For nearly two decades, the court file has slowly but steadily grown into a mountain of paperwork passing through several judges, despite the fact that the case has never proceeded to hearing.
Most of the affected individuals have been languishing in poverty as they wait to find out whether they will get millions of shillings in compensation, or be handed a verdict that Kenya Power paid all their terminal dues and benefits.
Some claimants have since died. The court will decide on the extent of amendments to the suit papers.
Also, the court has to decide whether claims by the deceased will also be buried.
Times have drastically changed since the suit was filed on August 13, 2003.
For starters, when the case was filed in 2003, there was no division of the courts exclusively dealing with labour relations disputes. The workers therefore filed their claims in the Civil division of the High Court.
Kenya Power has slid deeper in crisis as financial records indicate that the utility firm is not as much a going concern as it was two decades ago when the dispute started.
The retrenched workers have had to dig deeper into their pockets to pursue Sh1.6 billion in terminal dues, and at least 30 of the affected individuals have died before the case could be settled.
Kenya Power on its part has had to pay millions to fight off the Sh1.6 billion claim and it could be in more trouble in the event the court rules in favour of its former employees.
Last week, Nakuru judge Nelson Abuodha allowed the former Kenya Power workers to amend their suit to include fraud allegations against the utility company.
In allowing the application, Justice Abuodha expressed regret at how various parties, the litigants and the courts, had fuelled delays given the case is yet to proceed to hearing nearly 20 years after being filed.
“When I became seized of this matter in July, 2019 I immediately regretted from the look and size of the file, how long it had taken in our court system before being resolved one way or the other. As observed then, the matter has passed through several judges without the trial starting. As would be natural, several claimants have since died hence the issue of abatement before me.
“The matter to me presents a classic case of justice delayed is justice denied. I do not want to blame counsel for the delay, maybe the court too is responsible but that should not concern me at this point,” Justice Abuodha said last week.
In 2013, the court had allowed the former workers to amend their main suit against Kenya Power. Some claimants filed documents which made fresh claims not made in the 2013 amendments to the case.
Under practice law, once an individual has filed a claim in court, supporting documents are limited to supporting issues raised. Documents that raise new issues or claims can only be filed with express permission from the court, so as not to cause injustice to the opposing side.
In March, the former Kenya Power workers sought to amend some of their pleadings further to bring in allegations of fraud by the utility company when tabulating terminal dues and pension. They also wanted the court to revive some claims by ex-Kenya Power workers who had died in the course of the court battle.
Kenya Power opposed both applications, stating that some of the cases sought for revival had been dormant for almost the same time as the actual case. From the court papers, the most recent claim sought for revival is more than five years old.
Under court practice procedures, when a case remains dormant for 12 months on account of the plaintiff’s inaction, the case stands dismissed. The case can, however, be revived if reasonable explanations are given to the court on the inaction.
In cases where the claimant has died, the person substituting the deceased can apply to revive the case and give reasons for delay in coming into the suit.
Last week, Justice Abuodha declined to revive the dormant cases but allowed the former Kenya Power workers to amend their suit papers to include details of the alleged fraud by the utility firm.
“I have carefully considered the application dated March 16, 2021 and the orders sought therein. I have also considered the objections put forward by the respondents. Either side sound reasonably grounded in law. I will however in the interest of expediting this pitiful case allow the application only to the extent that the amendments regarding particulars of fraud would fall under paragraph 6AAA of the amended claim dated June 19, 2013,” Justice Abuodha ruled.
Justice Abuodha has also ordered that no further amendments will be allowed, and directed that every party gets its documents in order so as to give priority to the case in handing out of hearing dates.
