Jackson Oyugi Matoke & 15 others v Bidco Africa Limited [2022] KEELRC 886 (KLR)
The bottom line
#Kenya's Employment Court ruled that workers who join an unprotected strike can be lawfully dismissed, but employers must still follow proper disciplinary procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the Claimants engaged in an unprotected strike on 13th May 2015
Yes - the Claimants ceased work in combination without complying with Sections 76 and 79 of the Labour Relations Act or the grievance procedure
Applying the three sequential requirements in Lamathe Hygiene Food (trade dispute, failed conciliation, written strike notice), the Court found only the first fulfilled. CW1 admitted the Claimants refused to render services and were chased away; they had not given strike notice nor invoked the grievance mechanism in the memorandum of agreement or the HR manual. Participation in earlier stoppages on 10th March and 24th April 2015 corroborated the pattern.
Substantive fairness of the summary dismissal
Valid and fair reason existed - participation in an unlawful strike, absenteeism and insubordination amounting to gross misconduct under Section 44(4)
The employer proved on a balance of probabilities that the Claimants downed tools, refused pleas from management, Labour Officers and union officials to resume work, stopped production and caused losses. Participation in a strike not in compliance with the Labour Relations Act is a breach of contract and the dismissal letter tracked the Section 44(4) grounds and Company Rules.
Procedural fairness of the summary dismissal
Procedure under Section 41 was satisfied: show cause notices issued through the Claimants' advocates, responses considered, and disciplinary hearings held in their absence after they failed to attend
The show cause letters and hearing invitations were served on Rakoro and Company Advocates, which acknowledged receipt of hearing notices. The Claimants, bound by their advocate's acts, did not attend; the committee heard the cases in their absence, and minutes evidenced the process. The Claimants did not exercise the right of appeal. Failure to attend was attributable to their advocate, not the Respondent.
Entitlement to the monetary reliefs claimed
Only underpayment (if any) for days worked in May 2015 and certificates of service were awarded; all other heads were declined for lack of proof or finding of fair dismissal
House allowance was consolidated into the daily wage per the Regulation of Wages Order; leave had been settled under the tripartite return-to-work formula; no leave travelling allowance was ever raised; underpayment was unproved except for the possible Kshs.51.90 daily differential for 12 days worked in May 2015; and Section 49 compensation was unavailable because the dismissal was lawful.
Legal principles established
#- The constitutional right to strike must be exercised in accordance with the procedural prescriptions of the Labour Relations Act: a qualifying trade dispute, failed conciliation and seven days' written notice
- Employees are bound by the acts of their advocate as agent under the maxim qui facit per alium facit per se
- Whether an employee is paid during suspension or interdiction depends on the outcome of the disciplinary proceedings
- Employees must accord the employer reasonable time to address grievances rather than resorting to repeated stoppages
Court orders
#- 1.Judgment entered for the Claimants against the Respondent for the amount due to each Claimant for underpayment for the number of days worked in May 2015, payable only if the daily wage was not adjusted from Kshs.432.40 to Kshs.484.30 on 1st May 2015
- 2.The Respondent to issue a certificate of service to each Claimant within 30 days from the date of the judgment
- 3.The Claimants awarded 50% of the costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution and the Employment and Labour Relations Court Act over employment disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Oyugi Matoke & 15 others v Bidco Africa Limited [2022] KEELRC 886 (KLR)", Case Analysis (2022). Not stated in judgment (statement of claim dated 4th February 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/886/eng@2022-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.