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Court of AppealPartially AllowedEmployment and Labour Relations Appeal (as constituted at Eldoret; arising from Nakuru ELRC Cause No. E029 of 2021 consolidated with Cause Nos. E030 of 2021 and E031 of 2021)

Timsales Limited v Kenya Building, Construction, Timber & Furniture Industries Employees’ Union (Civil Appeal E009 of 2024) [2025] KECA 831 (KLR)

Court of Appeal of Kenya
9 May 2025
7,682 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal threw out a multi-million shilling award against Timsales because the union's claim was defectively pleaded and a judge wrongly delegated calculations to a labour officer.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Wasilwa J in the Employment and Labour Relations Court at Nakuru, delivered on 17th January 2023 in Cause No. E029 of 2021 consolidated with Cause Nos. E030 and E031 of 2021, in which 606 grievants represented by the respondent union were awarded notice pay, gratuity, days worked, six months' salary as compensation, certificates of service, costs and interest following dismissal after a lock-out and alleged unprotected strike in 2018. The Court of Appeal (Warsame, Mativo and Gachoka JJA) framed three issues: whether the grievants participated in an unprotected strike; whether they received a fair disciplinary process; and whether the trial judge abdicated her judicial function by directing the labour officer to compute quantum post-judgment. The Court held that Onyango J's unappealed ruling in Cause No. 1282 of 2018 had found the strike unprotected and illegal, and that Wasilwa J, a judge of concurrent jurisdiction, could not overturn that finding by distinguishing shifts; the appellant therefore had a valid reason to subject the grievants to disciplinary proceedings. The Court further found the Statements of Claim offended the mandatory Rule 9(3) of the ELRC (Procedure) Rules - duplicated names, deceased claimants and unpleaded wage details - and that resolving such contested issues of law and fact is a judicial function which cannot be delegated to a labour officer. The appeal partially succeeded: the trial judgment, consequential orders and the labour officer's computations were set aside, and each party was ordered to bear its own costs in the appeal and the court below. Procedural fairness of the dismissals was not determined, the appeal having been disposed of on two grounds.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the grievants participated in an unprotected strike
  2. 2.Whether the grievants were afforded a fair disciplinary process
  3. 3.Whether the trial judge abdicated her judicial function of computing the quantum of damages by directing the parties in conjunction with the labour officers to come up with computations on quantum, and whether the claims for special damages awarded were pleaded and proved

Key legal issues

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01

Whether the grievants participated in an unprotected strike and whether the appellant had a valid reason for disciplinary action

Holding

The grievants engaged in an unlawful unprotected strike; Onyango J's unappealed finding to that effect bound Wasilwa J, who could not overturn it by distinguishing shifts. The appellant therefore had a valid reason to subject the grievants to disciplinary proceedings.

Reasoning

The statutory definition of a strike and sections 75, 76 and 80(1) of the LRA show that participation in a strike that does not comply with the Act breaches the employment contract and justifies disciplinary action. Onyango J had found the strike unprotected and illegal, and that ruling was never appealed, reviewed or set aside. A judge of concurrent jurisdiction cannot overturn another's decision; Wasilwa J's shift-by-shift analysis amounted to sitting on appeal over a coordinate decision and was a grave error.

p. 9
02

Whether the trial judge abdicated her judicial function by directing the labour officer to compute figures post-judgment

Holding

Yes. The judge failed to determine contested issues of law and fact (duplicated names, deceased claimants, incomplete wage details) before remitting computation, thereby delegating a judicial function.

Reasoning

Rule 9(3) of the ELRC (Procedure) Rules mandatorily requires a schedule of claimants and details of wages due. The Statements of Claim omitted these details, duplicated names and included deceased claimants. Resolving the competence of claims by deceased claimants and the completeness of wage particulars are issues of law and fact for the trial court alone. Referring the calculation to the labour officer on unpleaded figures and a contested list was a grave misdirection, since making findings on disputed issues is a judicial function.

p. 11
03

Whether the special damages awarded were pleaded and proved

Holding

No. The claims were not specifically pleaded and the award could not stand.

Reasoning

Pleadings define and delimit the matters in controversy and alert the opposite party to the case to be met. The Statements of Claim did not plead figures as required by Rule 9(3); some gross-pay columns were left blank. Such fatal defects could not be cured post-judgment by reference to the labour office. Because the claim was not sustainable as filed, the Court found it unnecessary to address procedural fairness of the dismissals, the appeal being disposed of on the two grounds already addressed.

p. 12

Legal principles established

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  • A judge of equal and concurrent jurisdiction cannot overturn, review or sit on appeal against the decision of another judge of concurrent jurisdiction; only an appellate court may set it aside.
  • Participation by an employee in an unprotected strike is a breach of the employment contract and constitutes a valid and fair reason for disciplinary action or dismissal under section 80(1) of the Labour Relations Act.
  • Determining contested issues of fact and law is a judicial function that a trial court cannot delegate to a labour officer; a court may only remit computation after it has itself resolved contested issues of law and fact.
  • Where a statement of claim is defective or deficient - such as non-compliance with the mandatory requirement to file a schedule of claimants and wages - it is not the duty of the court to breathe life into it, and the defect cannot be cured by referring the claim to a labour officer.
  • On a first appeal the Court re-assesses the evidence and reaches its own conclusions but will not lightly differ from the trial judge's findings of fact, interfering only where findings are based on no evidence or wrong principles.

Court orders

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  1. 1.The judgment delivered by Wasilwa J on 17th January 2023 in Nakuru ELRC and all consequential orders were set aside
  2. 2.The award based on the figures calculated by the Labour Officer was set aside
  3. 3.Each party shall bear its own costs for the appeal and the court below

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court, Nakuru
Cause No. E029 of 2021 (consolidated with Cause Nos. E030 of 2021 and E031 of 2021)
Jurisdiction invoked
First appeal to the Court of Appeal under the Employment and Labour Relations Court Act and appellate jurisdiction over ELRC decisions; the judgment expressly frames the duty on a first appeal: 'This being a first appeal, it is our duty to re-assess the evidence on record and arrive at our own independent conclusions.'
Consolidated with
ELRC Cause No. E030 of 2021, ELRC Cause No. E031 of 2021

Relief refused

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Appellant's prayer that the appeal be allowed with costs to the appellant

The appeal only partially succeeded; the Court ordered each party to bear its own costs

p. 12

Respondent's terminal dues award, notice pay, gratuity, days worked and compensation

The Statements of Claim did not specifically plead special damages and did not comply with the mandatory Rule 9(3); contested issues of law and fact had to be resolved by the trial court before computation

p. 12

Costs

Each party shall bear its own costs for this appeal and the court below.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the result, fiowing from our discussion of the issues discussed herein above and the conclusions arrived at, we find that this appeal partially succeeds. Accordingly, we set aside the judgement delivered by Wasilwa J on 17th January, 2023 in Nakuru ELRC and all the consequential orders and substitute it with the following orders:
p. 12Disposition - appeal partially succeeds and trial judgment set aside
the figures calculated by the Labour Oficer cannot be allowed to stand and therefore the said award is hereby set aside.
p. 12Final orders - award based on labour officer's computations set aside
This is an appropriate appeal in which each party shall bear its costs for this appeal and the court below.
p. 12Costs order
Wasilwa J could not set-aside, review and /or sit on an appeal against the ruling by Onyango J, a judge of concurrent jurisdiction which could only be set aside by an appellate court.
p. 9Concurrent jurisdiction - no judge may overturn a coordinate judge's ruling
determining of questions of law and fact is a judicial function which ought to be performed by the trial court.
p. 11Judicial function cannot be delegated to a labour officer
If a claim is defective or deficient, it is not the duty of the court to breathe life into it.
p. 12Pleadings - court cannot cure a defective claim

Issues in the judgment

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minor

Internal inconsistency on whether the Court determined procedural fairness of the dismissal: earlier the Court says nothing suggests the termination reason was illegal and that a valid reason existed, but the procedural-fairness ground is left undecided on the basis that the appeal was disposed of by two grounds only.

minor

Inconsistent citation of the judgment date in Attorney General v W.O.I Samuel Chege Gitau: cited as 24 November 2023 in one passage and 24 November 2024 in another.

minor

Inconsistency in grievant numbers: the judgment states the total number of grievants in the three consolidated suits was 606, but later refers to 712 grievants in Cause E029 of 2021 and 505 in Cause E031 of 2021 alone.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Timsales Limited v Kenya Building, Construction, Timber & Furniture Industries Employees’ Union (Civil Appeal E009 of 2024) [2025] KECA 831 (KLR)", Case Analysis (2025). Employment and Labour Relations Appeal (as constituted at Eldoret; arising from Nakuru ELRC Cause No. E029 of 2021 consolidated with Cause Nos. E030 of 2021 and E031 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/831/eng@2025-05-09

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