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ELRCPartially AllowedCause No. 3 of 2014· [2018] KEELRC 1600 (KLR)

Kenya Plantation & Agricultural Workers Union v James Finlays (K) Limited [2018] KEELRC 1600 (KLR)

Employment and Labour Relations Court of Kenya
29 June 2018
5,733 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that James Finlays unfairly sacked workers for questioning changed pay and tasks, awarding them 12 months' salary compensation.

What this practically means

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Executive summary

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The Kenya Plantation & Agricultural Workers Union, with a recognition agreement and CBA with James Finlays (K) Limited, claimed on behalf of seven grievants summarily dismissed in June 2014 after questioning changes to daily tasks and rates of pay imposed without consultation, contrary to the CBA. Six grievants at Simotwet estate were arrested after stopping work pending clarification of rates, issued show cause letters with hours to respond, and dismissed after a disciplinary hearing; Monica Juma at Kaproret estate was dismissed after querying rates for new shears-based duties. The respondent denied the claim, pleaded gross misconduct under section 44(4) of the Employment Act and clause 25 of the CBA, and further argued the court was barred by issue estoppel from contradicting prior decisions between the same parties. The court rejected the estoppel plea as an abuse of terminology raised too late, holding it should have been a preliminary objection. On the merits, the court found the termination violated sections 41(1) and (2), 43, 44 and 45 of the Employment Act, the dismissals being for the wrong reasons and procedurally and substantively flawed. On relief, the court departed from prior practice of declining to quantify relief where monthly emoluments were unpleaded, invoking section 10 of the Employment Act and Article 22(3)(b) of the Constitution. It declared the terminations unfair and unlawful, awarded one month's salary in lieu of notice and 12 months' compensation, directed the Commissioner of Labour to compute the relief within 120 days with mention on 31st October 2018, and ordered the respondent to bear the costs. Reinstatement as sought was not granted.

Key legal issues

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01

Whether the termination of the employment of the 7 grievants was wrongful, unfair and unlawful

Holding

Yes. The dismissals violated sections 41(1) and (2), 43, 44 and 45 of the Employment Act, 2007, being devoid of both substantive and procedural requirements for lawful termination.

Reasoning

The grievants questioned changes to their daily task and rate of pay imposed by the respondent without consultation, contrary to section 10(5) of the Employment Act. The show cause letters gave inadequate time to respond (e.g. 1000 to 1500 hours), and the disciplinary process failed to meet statutory requirements. Dismissal for agitating for information on terms of service was for the wrong reasons and violated sections 41(1) and (2), 43, 44 and 45 of the Employment Act, 2007.

p. 7
02

Whether the respondent's plea of issue estoppel, based on prior decisions between the same parties, barred the claim

Holding

No. No two matters are alike in fact and substance; the defence was an abuse of terminology and should have been raised as a preliminary objection, not in submissions.

Reasoning

The court held that the cited cases bearing similarities with this cause did not debar it from hearing and determining the matter on its merits. An estoppel defence raised for the first time in submissions, rather than as a preliminary objection early in the proceedings, was described as suspicious, devoid of merit, and to be thrown out in readiness for the potent issues in dispute.

p. 7
03

Whether the claimant is entitled to the relief sought despite absence of pleaded monthly emoluments

Holding

Yes. The court departed from prior practice of leaving relief unquantified where emoluments were not pleaded, invoking section 10 of the Employment Act and Article 22(3)(b) of the Constitution.

Reasoning

The employer is burdened by section 10(2)(h) and (i) of the Employment Act to provide particulars of remuneration. Penalising a litigant for data not in its possession would be unfair. Article 22(3)(b) requires minimal formality in proceedings enforcing the Bill of Rights, a transformative shift the court held applicable to employment and labour relations, allowing relief to be computed by the Commissioner of Labour.

p. 8
04

Who bears the costs of the claim

Holding

The respondent, having lost the claim, was ordered to bear the costs.

Reasoning

The claim succeeded on the question of unlawful termination; the claimant was therefore held entitled to the relief sought, and costs followed the event against the respondent.

p. 8

Legal principles established

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  • An employer cannot unilaterally alter an employee's contract of employment; changes to terms such as daily task and rate of pay must be made in consultation with the employee, and dismissing employees for seeking information on such changes constitutes unfair, wrongful and unlawful termination
  • The employer bears the statutory burden under section 10 of the Employment Act to provide particulars of the contract of service including remuneration, and a successful litigant should not be penalised for failing to plead monthly emoluments that may not be in the litigant's possession
  • A defence of issue estoppel raised only in submissions, without being raised as a preliminary objection early in the proceedings, is an abuse of terminology and cannot debar the court from hearing the matter on its merits

Court orders

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  1. 1.A declaration that the termination of the employment of the grievants by the respondent was unfair, unlawful, untenable, unconscionable and illegal
  2. 2.One (1) months salary in lieu of notice
  3. 3.12 months compensation for unlawful termination of employment
  4. 4.The Commissioner of Labour, with the involvement of the parties, to compute the relief and file a report to the court within 120 days
  5. 5.Mention on 31st October, 2018 for a report on computation
  6. 6.The costs of the claim to be borne by the respondent

Authorities

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Legislation

  • Employment Act, 2007section 10(5)
  • Employment Act, 2007section 10(2)(h) and (i)
  • Employment Act, 2007section 41, 41(1), (2) and (3)
  • Employment Act, 2007section 43
  • Employment Act, 2007section 44(4)(a), (c) and (e)
  • Employment Act, 2007section 45(5)
  • Employment Act, 2007section 46(h)
  • Employment Act, 2007section 51
  • Constitution of Kenya, 2010Article 22(3)(b)
  • Collective Bargaining Agreementclauses 17 and 25

Cases cited (9)

  • Elizabeth Kwamboka Khaemba versus Bog Cardinal Otunga High School Mosocho & 2 Others
    [2014] eKLR
  • Rebecca Ann Maina and 2 Others versus Jomo Kenyatta University of Agriculture and Technology
    [2014] eKLR
  • Kepha Thuo Magua versus Board of Governors Satima Secondary School
    [2013] eKLR
  • Manfred Walter Schmitt & Another vs A.G & Other
    [2014] eKLR
  • Trade Bank Ltd v LZ Engineering Construction Ltd
    [2001] EA 266, 272
  • Daniel Toroitich arap Moi v Mwangi Stephen Muriithi and Another
    CA Civil Appeal No. 240 of 2011 [2014] eKLR
  • Alice Kemunto Manyura v James Finlays (K) Limited
    [2016] eKLR
  • James Makhkha Omukul v James Finlays (K) Ltd
    [2017] eKLR
  • Nicodemus Ooko Odhiambo v James Finlays (K) Ltd
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Collective Bargaining Agreement between the parties

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, "Kenya Plantation & Agricultural Workers Union v James Finlays (K) Limited [2018] KEELRC 1600 (KLR)", Case Analysis (2018). Cause No. 3 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1600/eng@2018-06-29

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