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ELRCPartially AllowedNot stated in judgment (Cause proceedings instituted 25 October 2016)· [2020] KEELRC 1116 (KLR)

Kenya National Private Security Workers Union v Lavington Security Limited [2020] KEELRC 1116 (KLR)

Employment and Labour Relations Court
15 May 2020
1,604 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled Lavington Security unfairly fired unionised guards in defiance of a court order, awarding each six months' pay instead of reinstatement.

What this practically means

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Executive summary

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The Union sued Lavington Security Ltd on behalf of 12 Grievants summarily dismissed on or around 6 September 2016. Alfred Bosire's claim was marked withdrawn. The claims of Edwin Edeke, David Chacha, Fredrick Ouma and Thomas Osako were dismissed with costs as incompetent and an abuse of process, since the Union did not traverse the Respondent's pleas that three were still in employment and that Osako was dismissed for absenteeism and negligence. On procedural fairness, the Court found the Respondent had issued ultimatums and show-cause notices which the Grievants snubbed, amounting to substantial compliance with sections 35 and 41 of the Employment Act. On substantive fairness, however, the Court held the terminations invalid and unfair: an interim preservatory order of 15 April 2016 in Nairobi Cause No. 2045 of 2015 restrained dismissal of union members and had not been varied or set aside; a Ministry of Labour report validated unfair labour practices including below-minimum wages; and the duty roster showed two Grievants could not have abandoned duty. The real reason was the Grievants' agitation for better labour practices. Reinstatement was declined as impracticable after over three years; each of the six Grievants with documented salaries received six months' gross wages, and the Respondent was ordered to compute Samuel Momanyi's compensation using his August 2016 salary. The Claimant was denied costs for late filing of submissions. Judgment delivered by Radido Stephen, J, in Nairobi on 15 May 2020.

Key legal issues

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01

Competence of claims for Grievants still in employment or dismissed on different grounds

Holding

The claims of Edwin Edeke, David Chacha, Fredrick Ouma and Thomas Osako were incompetent and an abuse of process; Alfred Bosire's claim was marked withdrawn

Reasoning

The Respondent asserted that Edeke, Chacha and Ouma were still in employment as at 27 September 2018 despite the pleaded cause of action of 6 September 2016, and that Osako was dismissed on 28 September 2016 for absenteeism and negligence. The Union did not join issue or traverse these pleas or demonstrate termination on 6 September 2016. Their claims were therefore dismissed with costs.

p. 1
02

Procedural fairness under sections 35 and 41 of the Employment Act

Holding

The Respondent was in substantial compliance with statutory procedural fairness requirements

Reasoning

The Respondent issued ultimatums to resume duty and show-cause notices which the Grievants declined to receive, then summarily dismissed them. The Court found on the documents and oral testimony that the Grievants were afforded an opportunity to return to work or explain their failure but declined to cooperate, satisfying section 41.

p. 2
03

Substantive fairness under sections 43 and 45 of the Employment Act

Holding

The reasons for termination of the 7 Grievants' contracts were not valid nor fair

Reasoning

An interim preservatory order of 15 April 2016 in Nairobi Cause No. 2045 of 2015 restrained dismissal of union members and had not been varied or set aside by 6 September 2016. A Ministry of Labour report validated allegations of unfair labour practices including below-minimum wages, and the duty roster showed two Grievants could not have abandoned duty. The real reason was agitation for better labour practices.

p. 3
04

Appropriate remedy: reinstatement or compensation

Holding

Compensation equivalent to 6 months gross wages awarded to each of the 7 Grievants instead of reinstatement

Reasoning

Reinstatement was impracticable as over 3 years had elapsed and no evidence on practicality was led. The Court awarded 6 months' gross wages based on payslips or pay advice schedules produced in court; for Samuel Momanyi, whose salary was not disclosed, the Respondent was ordered to compute compensation using his August 2016 salary.

p. 3

Legal principles established

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  • An employer is bound by an interim preservatory court order restraining dismissal, and must seek clarification, review or setting aside rather than ignore it
  • An employer bears the burden under sections 43 and 45 of the Employment Act of proving valid and fair reasons for termination
  • An employer should involve a union that has recruited its employees in the process leading to termination, even absent a recognition agreement

Court orders

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  1. 1.Alfred Bosire's claim marked as withdrawn
  2. 2.Claims of Edwin Edeke, David Chacha, Fredrick Ouma and Thomas Osako dismissed with costs to the Respondent as incompetent and an abuse of court process
  3. 3.Declaration that the termination of the 7 Grievants' employment was unfair
  4. 4.Compensation of 6 months gross wages awarded to each of Yegon Hillary (Kshs 52,200/-), Rina Masinde (Kshs 69,000/-), Adonijah Rabach (Kshs 63,756/-), Kizito Onyango (Kshs 63,000/-), David Obiero (Kshs 63,000/-) and Sarah Sitati (Kshs 74,466/-)
  5. 5.Respondent ordered to compute Samuel Momanyi's compensation using his salary for August 2016
  6. 6.Claimant denied costs for late filing of submissions

Authorities

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Legislation

  • Employment Act, 2007section 35(1)(c)
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43
  • Employment Act, 2007section 45

Cases cited (1)

  • Kenya National Private Security Workers Union v Lavington Security Ltd
    Nairobi Cause No. 2045 of 2015
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance Cause)

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 National Private Security Workers Union v Lavington Security Limited [2020] KEELRC 1116 (KLR)", Case Analysis (2020). Not stated in judgment (Cause proceedings instituted 25 October 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1116/eng@2020-05-15

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