Fancy Kirui v Regional Royal Transmission Co. Ltd [2018] KEELRC 24 (KLR)
The bottom line
#Kenya's Employment Court ruled employees who refuse mandatory written employment contracts cannot later claim unfair termination or compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a lockout within the meaning of section 2 of the Employment Act and Part 10 of the Labour Relations Act
There was no unlawful lockout; the closure of the gates was to compel employees to sign written contracts, a lawful purpose, and any lockout was lawful
The court analysed the statutory definition of lock-out, which requires a trade dispute and a purpose of compelling acceptance of a demand, not final termination of employment. Part X of the Labour Relations Act sets out when a lock-out is protected. The respondent's closure was to comply with section 10 of the Employment Act requiring written contracts. The claimant refused to sign and thus frustrated own employment; the union's advice not to sign caused the loss of employment.
Whether there was unfair termination of employment
There was no termination of employment by the respondent; the claimant remained out of work by choice after refusing to sign a written contract
The evidence showed the respondent had cash flow problems, laid off employees from 10 November 2015, and on resumption required all employees to sign contracts. Those who signed remained employed. The claimant, advised by the union, declined to sign and was locked out. The respondent met its obligation under section 10 of the Employment Act to issue written terms, and cannot be held liable. The union's wrong advice is where the remedy lies.
Whether the remedies claimed (notice pay, compensation under section 49) are due
No remedies are due since there was no unfair termination or unlawful lockout
Having found the loss of employment self-inflicted and not an unfair termination or unlawful lockout, the statutory remedies of notice pay and compensation under section 49 of the Employment Act do not arise. The consent orders conceding pro-rata leave, public holidays, rest days and house allowance had already resolved those heads.
Legal principles established
#- A lock-out must exist within a trade dispute and must not be intended to finally terminate employment; a lock-out to compel employees to sign contracts required by section 10 of the Employment Act is lawful.
- Where employment commences on oral terms, the employer is required to issue a written contract of employment not later than two months after commencement, and this duty is mandatory and cannot be negated by agreement.
- The Constitution grants workers the right to strike but no corresponding right to a lock-out; asymmetrical treatment of strikes and lock-outs is constitutionally legitimate.
Court orders
#- 1.The suit (test case) is dismissed
- 2.Each party shall bear own costs
- Jurisdiction invoked
- Article 162(3) of the Constitution read with the Employment and Labour Relations Court Act and Rule 24 of the Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbachi v Kazuri 2000 Limited (Cause 1171 of 2018) [2023] KEELRC 1026 (KLR)[2023] KEELRC 1026 (KLR)27 Apr 2023
Cite this brief
#Cite this brief
Caselaw, "Fancy Kirui v Regional Royal Transmission Co. Ltd [2018] KEELRC 24 (KLR)", Case Analysis (2018). ELRC Cause No. 329 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/24/eng@2018-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.