Nancy Christine Otieno & 34 others v Mumias Sugar Company Limited [2018] KEELRC 2037 (KLR)
The bottom line
#Kenya's Employment Court awarded 35 former Mumias Sugar employees six months' salary each for unfair dismissal, but refused reinstatement because more than three years had passed.
What this practically means
#Executive summary
#Key legal issues
#Availability of reinstatement after the statutory limitation period
Reinstatement is unavailable because more than three years had elapsed since dismissal; the court may instead grant any other appropriate relief under section 12(3)(viii) of the ELRC Act
All Claimants' services were terminated on 13th February 2015 by the same letters. Section 12(3)(viii) of the ELRC Act permits reinstatement only within three years of dismissal. The judgment in the test suit was delivered on 30th March 2017, within the window, but the limitation period expired on 13th February 2018, before this judgment. Reinstatement therefore cannot be ordered, though the Claimants pleaded damages in the alternative and prayed for any other just relief.
Application of the test judgment in Cause No. 77/2015 to the consolidated causes
Liability attaches to all Claimants: their terminations followed the same procedure faulted in the test judgment, being unfair for failure to accord a hearing
The test suit established that the Claimants were not heard on the specific grounds in their termination letters. The court found the Claimants here were terminated at the same time, for similar reasons, by the same disciplinary panel, and served in similar environments on similar terms. The only differences were their positions and lengths of service, relevant to quantum. Liability on the unfair procedure therefore applies across the causes, while compensation is assessed individually.
Entitlement to compensation under section 49 of the Employment Act
Each Claimant is awarded the equivalent of six months' salary, the quantum urged by the Respondent and supported by comparable authorities
The court took into account the similar circumstances of the terminations, the differing lengths of service, that the Claimants lost employment in questionable circumstances not of their own making due to the confusion in the Respondent's policy of terminating plots, and that terminal benefits were paid late. Considering the authorities cited, including Tom Mabya Luseno vs Mara West Camp, Franklin Kaime Wanyoike vs China CAMC Engineering, and Isaiah Nyakoe vs Kenya Wildlife Service, the court awarded six months' salary to each Claimant.
Service pay
Service pay claims fail because all Claimants were NSSF members, excluded under section 35(6)(d) of the Employment Act
No basis was laid for service gratuity. NSSF dues were deducted and paid on the Claimants' behalf by the employer. Section 35(5) entitles an employee to service pay, but section 35(6)(d) excludes employees who are members of the National Social Security Fund. The claims therefore had no merit and were dismissed.
Legal principles established
#- The ELRC may only order reinstatement within three years of dismissal, after which the court retains power to grant any other appropriate relief
- A test judgment on the uniform termination procedure binds the related causes on procedure, but culpability and remedies must be assessed individually
- Termination without a hearing on the specific grounds in the termination letter violates sections 41, 43 and 45 of the Employment Act and attracts compensation under section 49(1)(c) as read with 49(4)
Court orders
#- 1.Award to each of the 35 Claimants the equivalent of six (6) months' salary in compensation for unlawful loss of employment, as itemised per claimant in the judgment
- 2.Provision of certificates of service to all the Claimants within 30 days of the judgment
- 3.Claims in respect of notice pay, arrear salary and payment in lieu of leave not awarded, it appearing the same had been paid
- 4.The compensation is payable with interest at court rates from the date of judgment until payment in full
- 5.Costs to abide the outcome
- Jurisdiction invoked
- Employment and Labour Relations Court Act (Cap. No. 20 of 2011, as amended by Act No. 8 of 2014), section 12(3), read with the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nancy Christine Otieno & 34 others v Mumias Sugar Company Limited [2018] KEELRC 2037 (KLR)", Case Analysis (2018). Cause No. 55 of 2015 (with Causes Nos. 38, 40, 42, 44, 46, 47, 48, 49, 60, 62, 67, 76, 83, 84, 85, 95, 164, 165, 405 of 2015 and others listed in the Claimants' submissions). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2037/eng@2018-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.