PLANTATION PLANT KENYA LIMITED V KENYA PLANTATION AND AGRICULTURAL WORKERS UNION [2013] KEELRC 371 (KLR)
The bottom line
#A Kenyan court ruled that an employer cannot sue a union for a wildcat strike the union did not start, and must fairly hear employees before firing them.
What this practically means
#Executive summary
#Key legal issues
#Whether the strike of 30.06.2011 was instigated by the respondent union
The strike was spontaneous and not initiated or approved by the union; the union officials' intervention and conclusion of the return to work formula was a positive remedial measure
The court found no evidence that the Chief Shop Steward or other stewards incited the workers. Union branch officials arrived only after workers had already stopped working, making instigation impossible. Their subsequent intervention and negotiation of a return to work formula complied with the Industrial Charter's duty to discourage breaches of peace by union members. Communications by officials after the formula was concluded were a genuine remedial measure.
Whether the termination of Mark Situma was fair
The termination was unfair - the employer failed to prove the reason and denied him notice and a hearing, contrary to sections 43 and 41 of the Employment Act, 2007
The employer alleged Situma refused to sign the entry and exit book and a warning letter, but never produced the book or extracts to prove the allegations. He was not accorded notice and a hearing. The employer also neglected its obligation to discuss the employees' grievance, chose to victimise the shop steward, used police and security, and violated the return to work formula by refusing to readmit him.
Whether the claimant could recover Kshs.1,038,037.50/= damages for the unprotected strike
No; where the union neither instigated the strike nor failed to intervene, it cannot be held liable; recovery may lie against individual employees through due disciplinary process
The court distinguished the South African authorities cited, because here the union did not instigate the strike and did intervene by negotiating a return to work formula which the claimant neglected to implement. The court held that in such circumstances the employer cannot recover from the union, though it may pursue employees shown to have participated voluntarily, through lawful disciplinary procedures.
Appropriate remedy for the unfairly terminated Chief Shop Steward
Reinstatement refused due to strained relations; compensation of twelve months' gross salary (Kshs.173,821.08/=) awarded
Although Situma sought reinstatement, the court considered the strained relationship between him and the claimant and found reinstatement would not be convenient to both parties. It instead awarded compensation at his last gross monthly salary of Kshs.14,485.09/= for twelve months, payable within 30 days failing which interest at court rates would accrue.
Legal principles established
#- Where it is established that the union did not instigate an unprotected strike and, upon learning of it, the union moves to intervene, the employer is precluded from holding the union liable for losses attributable to that strike; recovery lies, if at all, against the participating employees through lawful disciplinary procedures
- An employer asserting misconduct as reason for termination must prove the reason was real and genuine and must accord the employee notice and a hearing under sections 43 and 41 of the Employment Act, 2007
Court orders
#- 1.The respondent shall not engage in unprotected strike as to result in the claimant's economic and financial loss
- 2.The claimant to pay the respondent's member Mark Situma Kshs.173,821.08/= within 30 days from the date of judgment, failing which to pay the sum plus interest at court rates from the date of judgment till full payment
- 3.Each party to bear own costs of the case
- Jurisdiction invoked
- Employment and labour relations jurisdiction over the claim filed through the Federation of Kenya Employers (Labour Relations Act, s.76(b); Employment Act, 2007; Article 41 of the Constitution cited by the parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PLANTATION PLANT KENYA LIMITED V KENYA PLANTATION AND AGRICULTURAL WORKERS UNION [2013] KEELRC 371 (KLR)", Case Analysis (2013). Not stated in judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/371/eng@2013-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.