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Court of AppealPartially AllowedCivil Appeal No. 42 of 2015· [2016] KECA 759 (KLR)

Lamathe Hygiene Food v Wesley Patrick Simasi Wafula & 8 others [2016] KECA 759 (KLR)

Court of Appeal of Kenya
26 February 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,417 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that even when employees join an unlawful strike, an employer must still give reasons and a hearing before summarily dismissing them.

What this practically means

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Executive summary

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Nine employees of Lamathe Hygiene Food, operating the Wimpy Mombasa restaurant, were summarily dismissed in February 2014 after they downed tools demanding a meeting with the director over doubled shifts, unpaid overtime and denial of leave. The Employment and Labour Relations Court at Mombasa (Makau, J.) found the dismissals unfair and awarded the respondents an aggregate of Kshs. 2,020,519/- in accrued emoluments and compensation, dismissing only the claims for public holidays and rest days. The employer appealed. This Court first held that following the deletion of Section 17 of the Industrial Court Act by the Statute Law (Miscellaneous Amendments) Act No. 18 of 2014, appeals in employment matters are no longer confined to questions of law, so it could re-evaluate both fact and law. On the merits, the Court found the respondents' concerted refusal to work was a strike that failed the statutory requirements of conciliation and seven days' written notice, and was therefore unlawful, entitling the employer in principle to summary dismissal under Section 44 of the Employment Act. However, the dismissal remained unfair because the employer neither gave reasons nor accorded a hearing beforehand, as Section 41 requires even for summary dismissal on grounds of misconduct. The award of notice pay and compensation for unfair termination was therefore undisturbed. The overtime claim failed for want of proof: the respondents bore the burden of showing they worked extra hours and adduced no evidence, and the claim could not predate the new manager's employment. The appeal succeeded only in part: the judgment and decree below were set aside solely as regards overtime payments, with no order as to costs in either court.

Key legal issues

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01

Scope of the Court of Appeal's jurisdiction in employment and labour appeals after the 2014 amendment

Holding

The former restriction of appeals to matters of law only no longer applies; the Court may re-analyze and re-evaluate both fact and law on a first appeal.

Reasoning

Section 17 of the Industrial Court Act No. 20 of 2011 originally limited appeals from the Industrial Court to matters of law. The Statute Law (Miscellaneous Amendments) Act No. 18 of 2014 deleted Section 17 in its entirety. The court held this removed the limitation on its jurisdiction, so the respondents' objection that the appeal raised issues of fact failed. The court then discharged its first-appellate duty to re-evaluate the evidence.

p. 3
02

Whether the respondents' refusal to work amounted to an unlawful strike

Holding

The respondents' concerted refusal to work was a strike that failed the Section 76 requirements of failed conciliation and seven days' written notice, rendering it unlawful.

Reasoning

The dispute concerned terms and conditions of employment, satisfying the first limb of Section 76 of the Labour Relations Act. However, no conciliator was ever appointed and no written strike notice was issued to the employer or the Minister. The strike was therefore unprotected and unlawful, and under Section 80 of the Act the workers were deemed to have breached their contracts of employment and liable to disciplinary action.

p. 4
03

Whether summary dismissal for participation in an illegal strike required reasons and a hearing

Holding

Yes. Although the appellant had a lawful basis to summarily dismiss, the dismissal was unfair because it was effected without prior notification of reasons and without a hearing, as mandated by Section 41 of the Employment Act even for summary dismissal under Section 44.

Reasoning

Section 44(3) and (4)(c) of the Employment Act entitled the appellant to summarily dismiss employees who wilfully neglected their duties, as in an illegal strike. But Section 41 requires an employer, before terminating or summarily dismissing on grounds of misconduct, to explain the reasons and hear the employee's representations. The dismissal letter was written only after the dismissal. No individual should be condemned unheard on charges unknown to him.

p. 5
04

Entitlement to notice pay despite summary dismissal

Holding

Section 35 of the Employment Act defines notice periods but does not abolish the requirement of notice; terminating without notice requires a cause recognized by law, which the appellant failed to prove.

Reasoning

The appellant argued Section 35 permitted dismissal without notice. The court held the section defines applicable notice periods and preserves termination without notice only for a cause recognized by law. The onus lay on the employer to prove such a cause; none was advanced. Failure to follow the statutory imperatives rendered the summary dismissal unlawful, justifying the trial court's award of notice pay and compensation for unfair termination.

p. 6
05

Whether the respondents proved the overtime claim

Holding

No. The burden lay on the respondents to prove the extra hours worked; the evidence was not adduced, and the claim predated the new manager's employment.

Reasoning

The respondents alleged the new manager merged the two shifts and imposed continuous work without added pay. The appellant denied the merger. Where the allegation is denied, the evidentiary burden rests on the party alleging - the respondents - who called no evidence of extra hours. Further, the respondents conceded the new manager was only employed on 6th February 2014, so the overtime claim could not run from May 2013.

p. 6

Legal principles established

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  • Following the deletion of Section 17 of the Industrial Court Act by the Statute Law (Miscellaneous Amendments) Act No. 18 of 2014, appeals to the Court of Appeal in employment and labour matters are no longer limited to matters of law; the Court hears issues of both fact and law.
  • A strike is lawful and protected only if the dispute concerns terms and conditions of employment or union recognition, conciliation has failed, and seven days' written strike notice has been given; a worker participating in an unlawful strike breaches the contract of employment.
  • Even where an employer is entitled to summarily dismiss an employee on grounds of misconduct (including participation in an illegal strike), the employer must still give reasons and accord the employee a hearing before dismissal under Section 41 of the Employment Act.
  • An employer bears the onus of proving a cause recognized by law to justify terminating a contract without notice.
  • The burden of proving overtime worked lies on the employee who alleges it; failure to adduce such evidence leaves the claim a mere allegation.

Court orders

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  1. 1.The judgment and decree of the Employment and Labour Relations Court are set aside but only to the extent of overtime payments
  2. 2.No order as to costs in the appeal as well as in the Employment and Labour Relations Court

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(2)(d) (right to strike)
  • Constitution of Kenya, 2010Article 164(3)
  • Industrial Court Act No. 20 of 2011Section 17(1) and (2) (as deleted)
  • Statute Law (Miscellaneous Amendments) Act No. 18 of 2014Deletion of Section 17 of the Industrial Court Act
  • Labour Relations ActSection 2
  • Labour Relations ActSection 65
  • Labour Relations ActSection 76
  • Labour Relations ActSection 79
  • Labour Relations ActSection 80
  • Employment Act 2007Section 2
  • Employment Act 2007Section 35(3), (4)(b)
  • Employment Act 2007Section 41(1), (2)
  • Employment Act 2007Section 44(3), (4)(c)

Cases cited (2)

  • Maseno University v Universities Academic Staff Union
    [2015] eKLR
  • CMC Aviation Limited v Mohammed Noor
    [2015] eKLR
On appeal from
Employment and Labour Relations Court of Kenya at Mombasa
Industrial Court Cause No 46 of 2014
Jurisdiction invoked
Appeal under Section 17 of the Industrial Court Act No. 20 of 2011 in accordance with Article 164(3) of the Constitution; the limitation to matters of law was deleted by the Statute Law (Miscellaneous Amendments) Act No. 18 of 2014, permitting this Court to hear issues of both fact and law.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (13)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Lamathe Hygiene Food v Wesley Patrick Simasi Wafula & 8 others [2016] KECA 759 (KLR)", Case Analysis (2016). Civil Appeal No. 42 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/759/eng@2016-02-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.