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ELRCPartially AllowedCause No. 81 of 2005· [2007] KEELRC 9 (KLR)

KENYA ENGINEERING WORKERS’ UNION v BROLLO KENYA LTD. [2007] KEELRC 9 (KLR)

Industrial Court of Kenya
3 April 2007
CCCharles P. ChemmuttutJKJ.M. KilonzoDSD.K. Siele
4,057 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court ruled the workers' strike was unlawful because they skipped the required legal steps, so only four wrongly dismissed employees won reinstatement.

What this practically means

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Executive summary

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This dispute, referred to the Industrial Court by the Minister for Labour under Section 8 of the Trade Disputes Act, Cap. 234, concerned the alleged unlawful lock-out of 37 employees of Brollo Kenya Ltd and the employer's refusal to implement the Court's interpretation of an earlier award (Cause No. 5 of 1999) concerning arrears for six employees. The background was a strike in March 2004, preceded by a 21-day strike notice issued by the Union despite pending negotiations, a Ministerial order under Section 29 declaring the strike unlawful, warning letters from the Company, and the eventual summary dismissal of the 37 grievants. The Union sought unconditional reinstatement or, in the alternative, terminal benefits including twelve months' compensation for unlawful lock-out; the Company contended the strike was unlawful under Sections 26 and 34 of the Act and the dismissals justified, and sought penalties against Union officials and costs. The Court held there was no lock-out: the grievants deliberately ceased work in combination, which was a strike, and it was unlawful because no proper strike notice was given under Section 26 and no trade dispute was reported under Section 4. The arrears grievance was not urgent enough to justify bypassing the statutory machinery. The demands of the 33 grievants who struck were rejected as untenable. However, four grievants (Ng'eno, Mbukuli, Tuva and Mungai) were on leave during the strike with no credible evidence linking them to it; the Court ordered their reinstatement with half wages from dismissal to reinstatement, or terminal benefits plus twelve months' wages each if they declined reinstatement. The Court declined to impose penalties on the Union or its officials. The award was dated and delivered in Nairobi on 3rd April 2007.

Key legal issues

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01

Whether there was a lock-out

Holding

No lock-out occurred; the cessation of work was a strike by the employees

Reasoning

Applying the Section 2 definition of lock-out, the Court found the employer did not close the workplace, suspend work or refuse employment in consequence of a dispute to compel acceptance of terms. Instead, the grievants deliberately ceased work in combination, which constitutes a strike under the statutory definition.

p. 7
02

Whether the strike was lawful

Holding

The strike was unlawful; no proper strike notice was given and no trade dispute was reported before the strike

Reasoning

The Court found no notice, or proper notice, of strike was given under Section 26 and no trade dispute had been raised under Section 4 before the grievants struck. The grievance over arrears for six employees was not urgent enough to justify bypassing the statutory dispute-resolution procedure.

p. 7
03

Whether the summary dismissals were wrongful

Holding

Wrongful only as regards the four grievants who were on leave during the strike

Reasoning

Participation in an unlawful strike justified summary dismissal of the striking employees. However, four grievants were on compassionate or annual leave during the strike and there was no credible evidence linking them to it; their dismissal was wrongful and warranted reinstatement and half wages for the period, or terminal benefits plus twelve months' compensation if they declined reinstatement.

p. 7

Legal principles established

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  • A strike requires cessation of work by a body of employees acting in combination under a common understanding, and duration is not a criterion for determining a strike
  • Employees should not resort to strike without exhausting the lawful dispute-settlement machinery unless the demand is urgent and serious
  • An employee who remains out of employment as a result of an illegal order or through no fault of his own is entitled to wages for the period of unemployment

Court orders

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  1. 1.Dismissal of the 33 grievants found to have participated in the unlawful strike upheld; their demands rejected
  2. 2.Reinstatement forthwith of the four grievants (Simon Ng'eno, Simon Mbukuli, David Tuva and George Mungai) under Section 15(1)(i) of the Act
  3. 3.The four reinstated grievants to be paid half (½) of their wages/salary from the date of wrongful dismissal to the date of reinstatement, with continuity of service, leave and other entitlements restored
  4. 4.If any of the four grievants found alternative employment or do not wish to return, payment of terminal benefits under the collective agreement plus twelve months' wages/salary each as compensation for wrongful dismissal under Section 15(1)(ii) of the Act
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234 (reference by the Minister for Labour)

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, "KENYA ENGINEERING WORKERS’ UNION v BROLLO KENYA LTD. [2007] KEELRC 9 (KLR)", Case Analysis (2007). Cause No. 81 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2007/9/eng@2007-04-03

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