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ELRCPartially AllowedCause 69 of 2012· [2013] KEELRC 253 (KLR)

PETER KIMILU & ANOTHER V KENYA PETROLEUM OIL WORKERS UNION [2013] KEELRC 253 (KLR)

Industrial Court of Kenya
17 May 2013
JRJames Rika
2,401 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 two union employees were unfairly fired, awarding each six months' salary but rejecting their multimillion-shilling exaggerated claims.

What this practically means

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Executive summary

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Two former officers of the Kenya Petroleum Oil Workers Union, Peter Kimilu (Accounts Clerk/Bank Agent) and Kennedy Ogendi (Director of Organization), claimed their November 2011 terminations were unlawful and unfair, asserting they were declared redundant after clashing with the Union's leadership. They sought salary arrears, notice pay, leave dues, service pay/severance, 12 months' compensation each, and certificates of service; in supplemental filings they enhanced their claims to Kshs. 10,202,416 and Kshs. 12,997,962 respectively. The Respondent maintained both were terminated for gross misconduct (financial irregularities for Kimilu; mishandling of Grievants' cheques and forgery for Ogendi), that summary dismissal was commuted to regular termination with benefits paid, and asked for dismissal of the claims. The Court found no redundancy situation on record; the terminations followed misconduct complaints and disciplinary proceedings. It held the Respondent failed to prove valid reasons, the allegations were generalized, and the Claimants were not heard within the Section 41 Employment Act 2007 procedural guarantees, making the terminations unfair on substantive and procedural grounds. The enhanced claims were rejected as afterthought with no evidential or legal foundation, and the Court cautioned against exaggerated claims. Salary arrears, leave and notice were found paid; service pay was denied as both were NSSF contributors. The Court awarded each Claimant six months' gross salary in compensation (Kshs. 260,400 for Kimilu; Kshs. 246,000 for Ogendi), payable within 30 days, ordered release of certificates of service, and made no order on costs.

Key legal issues

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01

Whether the terminations amounted to redundancy

Holding

No redundancy situation was established; the terminations followed allegations of gross misconduct and disciplinary proceedings

Reasoning

The Claimants claimed they lost employment through redundancy, but the letters issued called them to disciplinary proceedings and they attended them. The Court found these facts inconsistent with redundancy, which requires a genuine operational basis, and held the terminations followed misconduct complaints instead.

p. 4
02

Whether termination was unfair on substantive and procedural grounds

Holding

Termination of both Claimants' contracts was unfair on both substantive and procedural grounds; reasons were generalized and Section 41 procedure was not met

Reasoning

The Respondent failed to show valid reasons; allegations were generalized and inconsistent. The specific charges were not availed and the Claimants were not heard within the Section 41 procedural guarantees. The Respondent also failed to appear on 4th February 2013 to justify the terminations, leaving the reasons unproven.

p. 5
03

Whether the enhanced claims were recoverable

Holding

The enhanced claims were dismissed as afterthought with no legal or factual foundation

Reasoning

The supplemental bundles introduced damages for family inconvenience, gratuity and compensation for foregone years without evidence, statutory or contractual basis. The Court cautioned that exaggerated monetary claims in the Industrial Court raise doubt about otherwise genuine heads of claim.

p. 4

Legal principles established

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  • A redundancy claim fails where there is no material on record establishing a redundancy situation
  • Termination requires both valid substantive reasons and compliance with the procedural guarantees under Section 41 of the Employment Act 2007, including specific charges and a hearing
  • Exaggerated claims lacking evidence undermine the veracity of the entire claim

Court orders

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  1. 1.Declaration that the termination of the Claimants' contracts of employment was unfair
  2. 2.The 1st Claimant Peter Kimilu to be paid 6 months' gross salary at Kshs. 260,400 and the 2nd Claimant Kennedy Ogendi 6 months' gross salary at Kshs. 246,000 in compensation
  3. 3.The Respondent to pay these respective sums to the Claimants within 30 days of the delivery of the Award
  4. 4.The Respondent to release the Claimants' certificates of service forthwith
  5. 5.No order on the costs

Authorities

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Legislation

  • Employment Act 2007Section 41
Jurisdiction invoked
Employment and labour relations dispute before the Industrial Court (Cause 69 of 2012)

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, "PETER KIMILU & ANOTHER V KENYA PETROLEUM OIL WORKERS UNION [2013] KEELRC 253 (KLR)", Case Analysis (2013). Cause 69 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/253/eng@2013-05-17

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