THE High Court's Labour Division has dismissed Exim Bank's application to review Commission for Mediation and Arbitration (CMA) decision that requires the bank to pay 75m/- its 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 to be challenged was made on January 29, 2019 by the CMA, which contained errors that rendered it in-executable 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.
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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.
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.
The judge further 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.
