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ELRCPartially AllowedCause No 524 of 2013· [2018] KEELRC 730 (KLR)

Transport Workers Union v Starways Express Limited & another [2018] KEELRC 730 (KLR)

Employment and Labour Relations Court
2 November 2018
RSRadido Stephen
692 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court ruled that dismissing drivers without notice or hearing was unfair and awarded each Kshs 84,000.

What this practically means

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Executive summary

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The Transport Workers Union first moved the Employment and Labour Relations Court on 15 April 2013 alleging unfair termination/lock-out of Peter Kithuka Nguva by Starways Express Ltd and Salim Sheikhan, and on 28 November 2014 filed a Memorandum of Claim extending the dispute to three employees - Peter Kithuka Nguva, Joseph Mutiso Kioko and Cosmas Ndote Mutune - and their accrued terminal benefits. The Respondents' Joint Reply asserted the 1st Respondent had been struck off the register of companies, that the Grievants were casual workers and that the claims were statute-barred, but no evidence was produced. At the hearing on 5 July 2018, to which service was acknowledged by the Respondents' advocates' secretary, the Respondents and their advocate did not attend. Two Grievants testified: Kithuka, employed as a driver in 1992 at Kshs 12,000/- per month and dismissed on 1 December 2012 without notice or hearing, and Ndote, employed in 1989, earning Kshs 12,000/- and dismissed on 13 May 2013, also without notice or hearing, and claiming untaken leave over 23 years. The Court criticised the Union's joinder of Grievants dismissed at different times in a single claim and urged training of Industrial Relations Officers on pleadings. Holding the terminations unfair for want of notice under section 35 of the Employment Act, 2007, the Court awarded each Grievant Kshs 12,000/- notice pay plus six months' compensation (Kshs 72,000/-), totalling Kshs 84,000/- each. Underpayment, leave and Joseph Kioko's claims failed for want of proof and limitation. No order as to costs.

Key legal issues

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01

Unfair termination for want of notice

Holding

Termination without notice or hearing was unfair; each Grievant awarded one month's pay in lieu of notice

Reasoning

The Grievants testified they were dismissed without notice or hearing. The Respondents, though served with hearing notice, did not attend, leaving that evidence unrebutted. The Court applied section 35 of the Employment Act, 2007, holding that termination for lack of notice was unfair and entitling each Grievant to pay in lieu of notice equivalent to one month's salary of Kshs 12,000/-.

p. 2
02

Compensation for unfair termination

Holding

Equivalent of six months' gross salary awarded to each successful Grievant (Kshs 72,000/- each)

Reasoning

In assessing compensation, the Court considered the Grievants' long lengths of service - one employed in 1992 and the other in 1989, serving until dismissal. Taking those lengthy service periods into account, the Court considered the equivalent of six months' compensation appropriate, amounting to Kshs 72,000/- each, in addition to notice pay.

p. 2
03

Burden of proof on underpayment and leave claims

Holding

Claims failed for want of evidential foundation and limitation

Reasoning

The Court found the Grievants did not lay a proper factual or evidential foundation for the underpayment claim, noting there was no evidence as to the categories of vehicles driven, which would determine applicable minimum wage rates. The leave claims were circumscribed by sections 28(4) and 90 of the Employment Act, 2007 on limitation.

p. 2
04

Effect of respondent's non-attendance

Holding

Court proceeded on unrebutted evidence but regretted the absence

Reasoning

The Respondents and their advocate were served with a hearing notice, acknowledged by their advocate's secretary, but opted not to attend. The Court therefore relied on the untested evidence of the two Grievants who testified, while regretting that the Respondents forfeited the opportunity to advance the defences set out in their Reply.

p. 2

Legal principles established

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  • Uncontested evidence of a claimant may found an award where a respondent, aware of the hearing, elects not to attend
  • Lack of notice renders termination unfair and attracts pay in lieu of notice under section 35 of the Employment Act, 2007

Court orders

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  1. 1.A declaration that the termination of the Grievants' contracts was unfair
  2. 2.Award of Kshs 84,000/- each to Peter Kithuka and Cosmas Ndote Mutune (Kshs 12,000/- in lieu of notice plus Kshs 72,000/- being six months' compensation)
  3. 3.No order as to costs

Authorities

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Legislation

  • Employment Act, 2007section 35
  • Employment Act, 2007sections 28(4) and 90
Jurisdiction invoked
Not expressly stated; jurisdiction exercised under the Employment Act, 2007 in a claim of unfair termination and lock-out

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Transport Workers Union v Starways Express Limited & another [2018] KEELRC 730 (KLR)", Case Analysis (2018). Cause No 524 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/730/eng@2018-11-02

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