Sammy Bett, Leah Kiget, Daniel Nkanata, Reuben Kenduiwa & Joel Amuga v National Cereals and Produce Board [2014] KEELRC 1496 (KLR)
The bottom line
#Kenya's Industrial Court ruled the NCPB unfairly sacked five workers because it excluded their union from disciplinary hearings, and awarded them pay and compensation.
What this practically means
#Executive summary
#Key legal issues
#Limitation - whether the suit filed on 1st March 2012 was statute-barred under section 90 of the Employment Act
The preliminary objection on limitation fails because the dispute was reported to the Minister under section 65 of the Labour Relations Act, with time calculated from the Minister's letter of 1st March 2011, so the suit filed 1st March 2012 was within time
The court held that unionised employees who report a dispute to the Minister cannot be said to have sat back and let limitation run. The conciliator's certificate was absent, but the Minister's record dated 1st March 2011 could not be ignored; time runs from that date, and the suit filed a year later was timely.
Whether the termination was procedurally fair under sections 41 and 45 of the Employment Act
The termination was unfair because the union was neither notified nor invited to the SAC hearings and no employee of the claimants' choice accompanied them, contrary to section 41
Despite a Recognition Agreement and CBA with KUCFAW, the respondent suspended and heard the claimants without any union representative or shop steward present. Section 41 is a mandatory statutory requirement rooted in natural justice; non-compliance renders the dismissal inherently unfair under section 45, however grave the alleged misconduct. Selectively applying parts of the CBA while ignoring its disciplinary clauses was an unfair labour practice.
Whether the respondent could recover the wheat losses from the claimants absent a counter-claim
The court declined to award the respondent's claimed losses because no counter-claim was pleaded
The respondent asserted outstanding sums after deducting losses from terminal dues, but its statement of response contained no counter-claim. A counter-claim is an independent action which must comply with the pleading rules, including Order VII of the Civil Procedure Rules, and the claimants were entitled to an opportunity to reply to it.
Effect of backdating the termination to the suspension date
The respondent was ordered to pay salaries for the period between suspension (6th November 2007) and the notice date (10th June 2008)
Termination notice issued on 10th June 2008 purported to take effect from 6th November 2007, the suspension date. This denied the claimants the chance to remain in employment through the hearing process. Had due process been applied, the termination would have taken effect on the notice date, so the intervening unpaid salaries fall due.
Legal principles established
#- Where an employee is unionised under a Recognition Agreement, section 41 of the Employment Act requires the union to be notified and a union representative or employee of the employee's choice present at disciplinary hearings
- Failure to comply with section 41's hearing requirements renders a termination unfair regardless of the seriousness of the misconduct
Court orders
#- 1.Declaration that the termination of the claimants was unfair
- 2.Each claimant awarded one month's gross salary as compensation
- 3.Notice pay awarded at two months' gross salary
- 4.Respondent to compute and pay salaries due and unpaid from 6th November 2007 to 10th June 2008 within 14 days
- 5.Respondent to compute and pay within 14 days all outstanding leave days, staff savings, days worked and medical allowances unpaid
- 6.Dues computed based on gross pay as at 10th June 2008
- 7.Claimants awarded 50% of their costs
- 8.Mention on 18th September 2014 to confirm compliance
- Jurisdiction invoked
- Jurisdiction of the Industrial Court over employment disputes; sections 65 of the Labour Relations Act and 87 and 90 of the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sammy Bett, Leah Kiget, Daniel Nkanata, Reuben Kenduiwa & Joel Amuga v National Cereals and Produce Board [2014] KEELRC 1496 (KLR)", Case Analysis (2014). Cause No 262 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1496/eng@2014-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.