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ELRCPartially AllowedCause No. 630 of 2016

Erick Mutembei Mbaya v Medivet Products Limited [2021] KEELRC 17 (KLR)

Employment and Labour Relations Court of Kenya
9 December 2021
1,007 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an employee fired after joining an unprotected strike gets no damages, but must still be paid during suspension and receive agreed terminal dues.

What this practically means

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Executive summary

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The claimant, employed by the respondent from January 2000, sued for unpaid wages, four months' salary for a period of suspension, general damages, interest and costs following the termination of his employment by letter dated 29th July 2015. The termination followed a go-slow by employees on 3rd and 4th June 2015 over unpaid wage arrears, after which the claimant and others were suspended. A return-to-work agreement was reached; the claimant was later issued a notice to show cause, heard by a disciplinary committee, and dismissed for participating in an illegal strike. The respondent filed no evidence and remained absent at the hearing. The court held that an employee engaging in an unprotected strike is in breach of contract and liable to summary dismissal; wages are claimable only for protected industrial action, and even then an employer is not obliged to pay for services not rendered under section 79(6) of the Labour Relations Act. The claimant having been taken through due process under sections 35 and 41 of the Employment Act, damages for wrongful termination and notice pay were refused. The claim for Ksh.516,162 in double wages for two positions also failed for lack of proof. However, the court awarded Ksh.153,200 for the unpaid suspension period and ordered the respondent to confirm payment of Ksh.444,609 in agreed terminal dues within 30 days. Judgment was entered accordingly, with the claimant awarded 50% of his costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claimant was wrongfully terminated for participating in a go-slow/strike on 3rd and 4th June 2015
  2. 2.Whether the claimant is entitled to unpaid wages of Ksh.516,162 for holding two positions
  3. 3.Whether the claimant is entitled to 4 months' salary of Ksh.153,200 for the period of suspension
  4. 4.Whether the agreed terminal dues of Ksh.444,609 were paid
  5. 5.Whether notice pay and damages are due

Key legal issues

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01

Termination for participation in a strike

Holding

The termination was not wrongful; the claimant was taken through due process and cannot claim damages or notice pay

Reasoning

The claimant admitted participating in a go-slow on 3rd and 4th June 2015. An unprotected strike is a breach of contract attracting summary dismissal. The claimant was issued a notice to show cause, replied, and was heard, satisfying sections 35 and 41 of the Employment Act. There was therefore no wrongful termination and no notice pay due.

p. 2
02

Wages during a strike

Holding

Wages for the strike period are not claimable; an employer need not pay for services not rendered

Reasoning

The court read section 79(6) of the Labour Relations Act with sections 17 and 19 of the Employment Act. An industrial action must be protected under section 79 for an employee to claim wages over that period. Even in a protected strike, the employer is not obliged to remunerate for services not rendered.

p. 2
03

Claim for double wages for two positions

Holding

Rejected; only a single letter of appointment was produced and no evidence of double employment

Reasoning

The claimant claimed Ksh.516,162 for holding a higher store in-charge role while being paid as assistant. The court found only one letter of appointment attached, with no document conferring double employment, and noted any CBA wage arrears benefit was a matter for the union and employer under section 59(5) of the Labour Relations Act.

p. 2
04

Salary for the suspension period

Holding

Awarded in full as the respondent showed no good cause against payment

Reasoning

The claimant was suspended without pay for four months until termination. The respondent offered no defence or evidence, having absented itself from the hearing. The court found no good cause why the suspension period should not be paid and awarded the claimed Ksh.153,200.

p. 2
05

Agreed terminal dues

Holding

The respondent must confirm payment of the agreed Ksh.444,609 within 30 days

Reasoning

By a letter executed on 1st February 2016 the parties agreed the claimant would be paid Ksh.444,609 in terminal dues. Apart from the discharge letter, there was no evidence of remittance, so the respondent was ordered to confirm payment within 30 days.

p. 2

Legal principles established

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  • An employee who engages in an unprotected strike is in breach of his employment contract and subject to summary dismissal
  • An employer is not obliged to remunerate an employee for services not rendered during a protected strike or lock-out

Court orders

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  1. 1.Judgment entered for the claimant against the respondent
  2. 2.The claimant shall be paid Ksh.153,200 being unpaid wages for the suspension period
  3. 3.The respondent shall confirm payment of Ksh.444,609 agreed upon within 30 days
  4. 4.The claimant is awarded 50% of his costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Employment and labour relations jurisdiction over the claimant's employment dispute

Relief refused

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Unpaid wages of Ksh.516,162 for allegedly holding two positions

The claimant attached only a single letter of appointment with no evidence of double employment

p. 2

Damages for alleged wrongful termination

The claimant was taken through due process under sections 35 and 41 of the Employment Act

p. 2

Notice pay

Not due given the lawful termination following the unprotected strike

p. 2

Costs

The claimant is awarded 50% of his costs.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is trite that an employee who engages in an unprotected strike or industrial action is in breach of his employment contract and subject to summary dismissal.
p. 2Unprotected strike and summary dismissal
An employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike or lock-out.
p. 2No pay for services not rendered during strike
Accordingly, judgement is hereby entered for the claimant against the respondent and the claimant shall be paid Ksh.153,200 being unpaid wages; the respondent shall confirm payment of ksh.444,609 agreed upon within 30 days; and the claimant is awarded 50% of his costs.
p. 2Final orders

Issues in the judgment

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minor

The judgment states the written contract was issued on 14th January, 2000 while also stating the claimant was employed on 1st January, 2000; the dates appear inconsistent but are not material to the outcome.

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, "Erick Mutembei Mbaya v Medivet Products Limited [2021] KEELRC 17 (KLR)", Case Analysis (2021). Cause No. 630 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/17/eng@2021-12-09

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