Richard Nyasoko Kiyondi & 69 others v British American Tobacco (K) Limited [2018] KEELRC 330 (KLR)
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
#Key legal issues
#Whether the Court has jurisdiction to entertain the claim
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
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.
Whether the termination of the claimants was wrongful and unlawful
No. Under the repealed Employment Act (1976), which applied to the 2006 termination, there was no concept of unfair termination; termination was lawful if notice or payment in lieu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
The court held that the applicable statute was the repealed Employment Act of 1976 because the terminations occurred in 2006.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.
Whether the claimants are entitled to the reliefs sought under the CBA and the Employment Act 2007
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
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.
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.The entire claim is dismissed
- 2.Each party shall bear its own costs
- 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.