Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedMemorandum of Claim dated 22nd July 2014 (Cause)· [2015] KEELRC 92 (KLR)

Kenya Plantation & Agricultural Workers Union v Unilever Tea Kenya Limited [2015] KEELRC 92 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
14 December 2015
DMD.K. Njagi Marete
2,187 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled a tea estate worker was fired unfairly because he wasn't heard, and ordered him reinstated with full benefits and his belongings returned.

What this practically means

#

Executive summary

#
The claimant, through his union, sued on behalf of grievant Robert Ondieki, a general worker employed by the respondent since about July 2002 without a written contract. He was summarily dismissed on 3rd September 2011 for allegedly using abusive language and threatening a leaf inspector on 18th August 2011. The claimant alleged the dismissal violated natural justice - the grievant was condemned unheard, denied an opportunity to defend himself, and shop stewards were not involved. The respondent defended the dismissal as summary dismissal for misconduct under section 44(4)(d) of the Employment Act and clause 24(d) of the CBA, asserting a fair disciplinary hearing was held before shop stewards on 3rd September 2011. The court framed three issues: whether the termination was wrongful, unfair and unlawful; entitlement to relief; and costs. Weighing the conflicting testimony on a balance of probabilities, the court found the balance tilted in the claimant's favour and that the disciplinary process lacked procedural fairness, contrary to sections 41 and 45 of the Employment Act. It declared the termination wrongful, unfair and unlawful and allowed the claim: reinstatement without loss of benefits, reporting to work on 15th December 2015, payment of untaken leave, and return of household goods withheld during eviction. Each party was ordered to bear its own costs, the court reasoning the employment relationship should not be torn apart.

Key legal issues

#
01

Whether the termination was wrongful, unfair and unlawful

Holding

Yes - the respondent failed to accord the grievant procedural fairness in the disciplinary process

Reasoning

The court applied sections 41 and 45 of the Employment Act. Although the respondent alleged abusive language and threats under section 44(4)(d) and clause 24(d) of the CBA, the court found the evidence did not contradict the grievant's account and that the disciplinary process lacked procedural fairness, rendering the termination wrongful, unfair and unlawful. The balance of probabilities tilted in the claimant's favour.

p. 4
02

Entitlement to relief

Holding

Reinstatement without loss of benefits, payment of untaken leave and return of withheld household goods

Reasoning

Having found the termination unlawful, the court exercised its power to reinstate the grievant with full benefits rather than award the alternative monetary compensation sought. It also ordered payment for untaken leave and return of the household goods withheld during eviction from the residential premises.

p. 4
03

Costs

Holding

Each party to bear its own costs, given the continuing employment relationship

Reasoning

The court reasoned that the employment relationship must not be torn apart and therefore made no order as to costs, despite the claimant having succeeded.

p. 5

Legal principles established

#
  • An employer must accord an employee procedural fairness before termination, and failure on procedure forestalls a valid termination
  • Where evidence is word against word, the standard is balance of probabilities and preponderance of evidence

Court orders

#
  1. 1.That the grievant, Robert Ondieki be and is hereby reinstated to employment without loss of benefits, promotion and or emoluments.
  2. 2.That the grievant be and is hereby ordered to report to work tomorrow, 15th December, 2015 at 800 hours.
  3. 3.That the respondent be and is hereby ordered to pay the grievant for all leave due and untaken before termination.
  4. 4.That the respondent be and is hereby ordered to return the grievant's household goods and other property withheld during the eviction process from the respondent's residential premises on termination.
  5. 5.That each party shall bear its own costs of this cause.

Authorities

#

Legislation

  • Employment Act, 2007Section 44(3) and 44(4)(d)
  • Employment Act, 2007Section 41(1) and 41(2)
  • Employment Act, 2007Section 45(1)

Cases cited (2)

  • Bernard Shisiali Muhatia v Speedex Logistics Ltd
    (2013)
  • Fredrick Saundu Amolo Vs. Principal Namanga Mixed Day Secondary School & 2 Others
    (2014) eKLR
Jurisdiction invoked
Employment and labour relations dispute under the Industrial Court's jurisdiction (Employment Act, 2007)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kenya Plantation & Agricultural Workers Union v Unilever Tea Kenya Limited [2015] KEELRC 92 (KLR)", Case Analysis (2015). Memorandum of Claim dated 22nd July 2014 (Cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/92/eng@2015-12-14

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