Kenya Plantation & Agricultural Workers’ Union v Roseto Flowers [2013] KEELRC 587 (KLR)
The bottom line
#A Kenyan court ruled that even when a strike is unlawful, an employer cannot sack workers en masse without giving each one a fair hearing.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the strike of 22.10.2011
Although there was a trade dispute within the statutory definition, the strike was unlawful because the dispute had not been subjected to conciliation as required by sections 76 and 78 of the Labour Relations Act
The court found the arrest of two employees coupled with Human Resource office reforms generated an apprehended dispute concerning an employment matter. However, the strike preceded any conciliation process under the Act or the collective agreement. Conciliation before strike is at the core of industrial stability and amicable settlement; its omission rendered the strike unlawful.
Ultimatum principle versus natural justice
The ultimatum principle, as developed in South African law, does not apply in Kenya; the employer was bound to follow the rules of natural justice under sections 41 and 45 of the Employment Act and Articles 47 and 50(1) of the Constitution
The court found Kenyan constitutional and statutory employment law requires due process and fair procedure in terminations for misconduct. The ultimatum principle has no legislative basis in Kenya, and the court declined to transplant the South African approach. Collective punishment risks innocent employees being dismissed without individual explanations in self-exculpation.
Effect and scope of section 80 of the Labour Relations Act, 2007
Section 80 permits discipline for participating in a non-compliant strike only through fair process; the primary punishment is non-payment for the strike period; individual responsibility under section 80(2) obliges the employer to deal with staff individually; and jurisdiction over strike legality vests in the Industrial Court
The Act does not prescribe the disciplinary procedure, which is found in Articles 47 and 50(1) of the Constitution, the Employment Act, and the parties' agreement. Non-payment for the strike period is the primary sanction, requiring due process first. Dismissal should be invoked in extremely rare and obviously justified cases to foster collective bargaining.
Entitlement to remedies despite absence of verifying affidavit
The belated objection that the memorandum of claim lacked a verifying affidavit was rejected; dismissing the claim would undermine substantive justice where the facts were not significantly contested
Following John Kakai v Daystar University, the court held that where the correctness of the main facts is uncontested, verification is superfluous, and courts should disregard technicalities in employment disputes. Such objections should be raised early, long before the hearing, to serve any useful purpose.
Procedural fairness in the collective summary dismissal
The summary dismissal of over 100 employees without individual notices or hearings was wrongful and unfair
The employees were given only a two-hour ultimatum and no individual dismissal letters or hearings. The employer admitted it was not practical to subject each employee to a hearing, and there was no evidence terminal dues were deposited with the District Labour Office as stated in the dismissal notice.
Legal principles established
#- The ultimatum principle does not apply in Kenya; in an unlawful strike the employer must still apply rules of natural justice under the Constitution and the Employment Act
- Dismissal for participation in a non-compliant strike under section 80 of the Labour Relations Act may only be imposed through a fair process affording the employee notice and hearing
- The primary punishment under section 80 is denial of payment for the strike period, imposed only after due process, and dismissal should be reserved for extremely rare and obviously justified cases
- Section 80(2) protects employees who refuse to participate in a non-compliant strike, importing individual responsibility and making the ultimatum principle unavailable
- A strike taken before conciliation under the Labour Relations Act or the collective agreement is unlawful
Court orders
#- 1.A declaration that summary dismissal of Edward Mogaka and over 100 other employees as per the respondent's list attached to the letter dated 30.04.2013 Ref. No. KPAWU/IC/120/04/2013 was wrongful and unfair
- 2.The respondent to pay each of the affected employees full terminal benefits including one month pay in lieu of notice; days worked if any; overtime worked if any; annual leave due; and 6 months gross monthly wages as at termination as compensation for unfair termination
- 3.The claimant to compute the dues and serve the respondent by 5.07.2013, with the respondent to file and serve any objections by 12.07.2013 for confirmation
- 4.The respondent to pay the dues as confirmed by 1.10.2013 failing which interest payable at court rates from the date of judgment till full payment
- 5.The respondent to deliver to each affected employee the respective certificate of service by 1.08.2013
- 6.The respondent to pay costs of the case
- Jurisdiction invoked
- Section 12(3)(v) of the Industrial Court Act, 2011; section 80(3) of the Labour Relations Act, 2007 (jurisdiction to determine legality of strikes vested in the Industrial Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Plantation & Agricultural Workers’ Union v Roseto Flowers [2013] KEELRC 587 (KLR)", Case Analysis (2013). Memorandum of claim filed 26.10.2011 (Industrial Cause, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/587/eng@2013-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.