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Court of AppealDismissedCivil Appeal No. 53 of 2016· [2017] KECA 606 (KLR)

Mohammed Yakub Athman & 18 others v Kenya Ports Authority [2017] KECA 606 (KLR)

Court of Appeal
31 March 2017
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
5,553 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that workers in an illegal strike can be dismissed, but employers must still hear them before terminating.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Malindi by 19 former Kenya Ports Authority employees dismissed following two incidents in June and July 2015. The first, on 27th June 2015, involved a group of employees who left their work stations over delayed payslips containing unexplained deductions arising from a new biometric clocking system, culminating in a return to work formula. The second, on 1st and 2nd July 2015, was a strike called by the Trade Union Congress of Kenya against revised NHIF rates. The Employment and Labour Relations Court at Mombasa (Rika, J.) held that the terminations were substantively justified but procedurally unfair, and awarded each claimant six months' gross salary, terminal benefits, and 30 days' notice before vacating staff houses. The Court of Appeal, in a single judgment of the court, dismissed the appeal in its entirety. It held that both incidents were strikes within the meaning of Section 2 of the Labour Relations Act; that the July strike was unprotected because it was called by a federation without a recognition agreement with the respondent and targeted third parties and legislation after judicial remedies had been invoked; that participation in an illegal strike constituted gross misconduct justifying summary dismissal; but that Section 80 of the Labour Relations Act does not exclude the procedural fairness requirements of Section 41 of the Employment Act, so the trial court's finding of procedural unfairness was correct. The trial court's decision was affirmed and each party was left to bear its own costs, consistent with the trial court's costs order.

Key legal issues

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01

Whether the 27th June 2015 incident amounted to a strike

Holding

The incident was a strike: the concerned appellants ceased work, acting in combination, and demanded recall of the biometric clocking system and refund of deductions, satisfying the statutory definition of a strike; their participation and violent conduct constituted gross misconduct justifying summary dismissal

Reasoning

The Court evaluated the evidence afresh as a first appellate court. The appellants' own written statements admitted that almost all employees gathered at the head office, a withdrawal of labour. A return to work formula was agreed, which itself acknowledges a preceding strike. The allegations of belligerent conduct towards management remained uncontroverted, and the CCTV complaint failed because the appellants did not object to the trial court's directive to decide on the record.

p. 6
02

Whether the 1st and 2nd July 2015 strike over revised NHIF rates was protected

Holding

The strike was not protected: it was called by Tuc-ke, a federation without a recognition agreement with the respondent, targeted third parties (NHIF and the Government) and challenged legislation after the judicial mechanism had been invoked, so its participants lost constitutional and statutory protection

Reasoning

The right to strike under Article 41(2)(d) is limitable. The Labour Relations Act contemplates strikes over tractable disputes between employers and employees, not general strikes by umbrella unions over political or socio-economic subjects or aimed at extracting concessions from third parties. Tuc-ke had already petitioned the High Court over the NHIF rates and was refused a stay, making the strike a challenge to the legal order itself. The maxim ex turpi causa non oritur actio applied.

p. 7
03

Whether procedural fairness under Section 41 of the Employment Act applies to summary dismissal for participation in an illegal strike

Holding

Yes - Section 80 of the Labour Relations Act does not exclude Section 41; even where an employee's conduct amounts to fundamental breach, the employer must hear the employee before termination, and the respondent failed to do so

Reasoning

The Court agreed with the trial court (citing Kenya Plantation and Agricultural Workers Union v Roseto Flowers) that the deeming provision in Section 80 does not displace procedural protection. The respondent's claims that fear and the number of employees made hearings impossible were rejected: employees were available after the strike subsided, access had been deactivated, and most dismissals came a day after the strike fizzled out.

p. 8
04

Whether the trial court's disposition was correct

Holding

Affirmed in full: termination was on valid substantive grounds but procedurally unfair, warranting six months' salary compensation and terminal benefits

Reasoning

The Court found the appeal bereft of merit on all nine grounds. It agreed with the trial court's findings that the strikes were illegal, that summary dismissal was substantively justified under Section 80 of the Labour Relations Act and Sections 44(4) and 45 of the Employment Act, and that the dismissal was nonetheless procedurally unfair, sustaining the compensation and terminal benefits awards.

p. 8

Legal principles established

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  • Participation in an illegal or unprotected strike constitutes gross misconduct justifying summary dismissal, and does not exempt an employer from procedural fairness obligations under Section 41 of the Employment Act
  • A return to work formula is an acknowledgment that a strike preceded it
  • The sheer number of employees subject to discipline does not absolve an employer from procedural fairness; a collective mechanism must be devised
  • A party is bound by its pleadings and cannot raise a new matter for the first time on appeal except on jurisdiction

Court orders

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  1. 1.The appeal is dismissed with no order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 41(1)
  • Constitution of KenyaArticle 41(2)(d)
  • Constitution of KenyaArticle 24(5)(d)
  • Constitution of KenyaArticles 36 and 37
  • Employment ActSections 41, 44(3), 44(4), 45, 46
  • Labour Relations ActSections 2, 76, 79, 80
  • National Hospital Insurance Fund ActSection 4

Cases cited (5)

  • Festus Ogada V Hans Mollin
    [2009] eKLR
  • Kenindia Assurance Company Limited V Otiende
    [1989] 2 KAR 162
  • UAP Provincial Insurance Company Ltd V Michael John Beckett
    [2013] eKLR
  • Thuweiba Maka & Others V Aisha Juma & Another
    [2016] eKLR
  • Kenya Plantation and Agricultural Workers Union V Roseto Flowers
    (2013) eKLR
On appeal from
Employment and Labour Relations Court of Kenya at Mombasa
Industrial Court Claim No. 448 of 2015
Jurisdiction invoked
First appeal under the Court of Appeal's appellate jurisdiction (the judgment does not cite a specific provision)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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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, "Mohammed Yakub Athman & 18 others v Kenya Ports Authority [2017] KECA 606 (KLR)", Case Analysis (2017). Civil Appeal No. 53 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/606/eng@2017-03-31

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