Erick Mutembei Mbaya v Medivet Products Limited [2021] KEELRC 17 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant was wrongfully terminated for participating in a go-slow/strike on 3rd and 4th June 2015
- 2.Whether the claimant is entitled to unpaid wages of Ksh.516,162 for holding two positions
- 3.Whether the claimant is entitled to 4 months' salary of Ksh.153,200 for the period of suspension
- 4.Whether the agreed terminal dues of Ksh.444,609 were paid
- 5.Whether notice pay and damages are due
Key legal issues
#Termination for participation in a strike
The termination was not wrongful; the claimant was taken through due process and cannot claim damages or notice pay
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.
Wages during a strike
Wages for the strike period are not claimable; an employer need not pay for services not rendered
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.
Claim for double wages for two positions
Rejected; only a single letter of appointment was produced and no evidence of double employment
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.
Salary for the suspension period
Awarded in full as the respondent showed no good cause against payment
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.
Agreed terminal dues
The respondent must confirm payment of the agreed Ksh.444,609 within 30 days
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.
Legal principles established
#- 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
#- 1.Judgment entered for the claimant against the respondent
- 2.The claimant shall be paid Ksh.153,200 being unpaid wages for the suspension period
- 3.The respondent shall confirm payment of Ksh.444,609 agreed upon within 30 days
- 4.The claimant is awarded 50% of his costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and labour relations jurisdiction over the claimant's employment dispute
Relief refused
#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
Damages for alleged wrongful termination
The claimant was taken through due process under sections 35 and 41 of the Employment Act
Notice pay
Not due given the lawful termination following the unprotected strike
Costs
The claimant is awarded 50% of his costs.
Quotable passages
#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.
An employer is not obliged to remunerate an employee for services that the employee does not render during a protected strike or lock-out.
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.