Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCDismissedEmployment and Labour Relations Court Claim (Memorandum of Claim dated 25th October 2011)· [2018] KEELRC 330 (KLR)

Richard Nyasoko Kiyondi & 69 others v British American Tobacco (K) Limited [2018] KEELRC 330 (KLR)

Employment and Labour Relations Court
14 December 2018
2,216 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 dismissed 70 casual workers' Sh23.8 million claim because the old 1976 law, not the 2007 Employment Act, governed their 2006 terminations.

What this practically means

#

Executive summary

#
Seventy claimants, former casual workers at the respondent's Thika Green Leaf Threshing Plant, alleged wrongful and unlawful termination of employment following the plant's shutdown on 26th February 2006, and sought accumulated terminal benefits of Kshs.23,824,650.00, comprising two months' salary in lieu of notice, house allowance, transport of household goods, shift allowances, service pay and increment arrears, together with costs and interest. The respondent denied liability, contending the claimants were casuals, that the plant was shut down for two weeks to resolve quality anomalies, that the dispute was conciliated at the Ministry of Labour through their union KUCFAW, and that full terminal dues, including two weeks' pay in lieu of notice, were paid in accordance with the conciliation agreement. The respondent had earlier raised a preliminary objection on limitation and competence, which Nderi J. dismissed on 3rd May 2013; the court held that issue was res judicata. On the merits, the court found that the applicable law was the repealed Employment Act of 1976, under which unfair termination was not actionable and termination was lawful provided notice or payment in lieu was given. Under clause 40 of the CBA the claimants were casuals engaged on daily wages for not exceeding three months, with no entitlement to the claimed benefits. The entire claim was dismissed with each party bearing its own costs.

Key legal issues

#
01

Whether the Court has jurisdiction to entertain the claim

Holding

The court has jurisdiction; the preliminary objection on limitation, identification of claimants, authority and Section 68 of the Labour Relations Act was dismissed by Nderi J. on 3rd May 2013 and is res judicata

Reasoning

The respondent had raised the same jurisdictional issues in a preliminary objection dismissed by Nderi J. in a ruling of 3rd May 2013. No appeal was filed nor any order obtained setting aside or varying that ruling. The issues could not therefore be raised again, and the court was properly positioned to hear and determine the claim.

p. 3
02

Whether the termination of the claimants was wrongful and unlawful

Holding

No. Under the repealed Employment Act (1976), which applied to the 2006 termination, there was no concept of unfair termination; termination was lawful if notice or payment in lieu was given, which the respondent did

Reasoning

The court held that the applicable statute was the repealed Employment Act of 1976 because the terminations occurred in 2006. That statute did not provide for unfair termination, and the employer had no obligation to comply with natural justice requirements, so long as notice or payment in lieu of notice was given. The claimants had invoked sections 44 and 45 of the Employment Act 2007, which was not in force at the time of termination.

p. 3
03

Whether the claimants are entitled to the reliefs sought under the CBA and the Employment Act 2007

Holding

No. Clause 40 of the CBA classified them as casuals engaged for not more than three months on daily wages, and the Employment Act 2007 was not in force at the time of termination

Reasoning

The court examined clause 40 of the collective agreement, which provided that casual employees are engaged whenever necessary for periods not exceeding three months or 90 intermittent days per calendar year and paid on a daily basis. The claimants' claimed allowances and benefits could not be sustained under the CBA, and the Employment Act 2007 was not in force when their employment ended in 2006.

p. 5

Legal principles established

#
  • A preliminary objection fully determined by a prior ruling that was not appealed is res judicata and cannot be re-raised at the hearing
  • Where employment was terminated in 2006, the applicable law is the repealed Employment Act (1976), under which unfair termination was not a cause of action

Court orders

#
  1. 1.The entire claim is dismissed
  2. 2.Each party shall bear its own costs

Authorities

#

Legislation

  • Employment Act, 2007Sections 44(1), 45
  • Employment Act (1976)Repealed Act applicable to 2006 termination
  • Employment Act, 2007Section 90 (limitation)
  • Labour Relations Act, 2007Section 68
  • Collective Bargaining Agreement (Claimant's additional list of documents dated 17th March 2015)Clause 40 - Non-Permanent Employees

Cases cited (2)

  • High Court Civil Appeal No. 152 of 2011 (Jairus Nyaga J.)
  • Bangue Indosuez Vs DJ Lowe and Company Limited
    (2006)2KLR 208
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court over the employment claim, upheld in the Ruling of Nderi J. delivered 3rd May 2013 dismissing the respondent's Preliminary Objection

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Richard Nyasoko Kiyondi & 69 others v British American Tobacco (K) Limited [2018] KEELRC 330 (KLR)", Case Analysis (2018). Employment and Labour Relations Court Claim (Memorandum of Claim dated 25th October 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/330/eng@2018-12-14

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