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ELRCPartially AllowedNot stated in judgment (statement of claim dated 4th February 2016)· [2022] KEELRC 886 (KLR)

Jackson Oyugi Matoke & 15 others v Bidco Africa Limited [2022] KEELRC 886 (KLR)

Employment and Labour Relations Court
8 February 2022
11,627 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~47 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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Sixteen former employees of Bidco Africa Limited claimed unfair dismissal following events of 13th May 2015, seeking notice pay, salary for May to August 2015, house allowance, leave and leave travelling allowances, underpayment, 12 months' compensation and certificates of service. The Respondent contended that the Claimants participated in a series of unprotected stoppages of work culminating in a strike on 13th May 2015, and that it followed due process: show cause notices were served on the Claimants' advocates, responses were considered, and disciplinary hearings were held in the Claimants' absence after they failed to attend, resulting in summary dismissal for gross misconduct on 13th August 2015. The Court framed three issues: whether the Claimants engaged in an unprotected strike or were locked out; whether the termination was unfair; and the entitlement to remedies. Applying the three-step test for protected strikes from the Court of Appeal in Lamathe Hygiene Food, the Court found that although the underlying dispute was a trade dispute, the Claimants neither exhausted conciliation nor gave strike notice, and therefore engaged in an unprotected strike on 13th May 2015. On substance, the Respondent had a valid and fair reason to dismiss. On procedure, service of show cause and hearing notices through the Claimants' advocates bound them under qui facit per alium facit per se, and the hearings held in their absence satisfied Section 41 of the Employment Act. The dismissal was accordingly neither substantively nor procedurally unfair. Only two reliefs succeeded: underpayment, if any, for days worked in May 2015 (Kshs.51.90 per day, contingent on the daily wage not having been adjusted), and certificates of service to each Claimant within 30 days. All other heads were declined. The Claimants were awarded 50% of the costs.

Key legal issues

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01

Whether the Claimants engaged in an unprotected strike on 13th May 2015

Holding

Yes - the Claimants ceased work in combination without complying with Sections 76 and 79 of the Labour Relations Act or the grievance procedure

Reasoning

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.

p. 17
02

Substantive fairness of the summary dismissal

Holding

Valid and fair reason existed - participation in an unlawful strike, absenteeism and insubordination amounting to gross misconduct under Section 44(4)

Reasoning

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.

p. 19
03

Procedural fairness of the summary dismissal

Holding

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

Reasoning

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.

p. 20
04

Entitlement to the monetary reliefs claimed

Holding

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

Reasoning

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.

p. 22

Legal principles established

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  • 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

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  1. 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. 2.The Respondent to issue a certificate of service to each Claimant within 30 days from the date of the judgment
  3. 3.The Claimants awarded 50% of the costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 41(1), 41(2)(d), 47, 48, 159(2)(d)
  • Employment Act, 2007Sections 2, 35(6)(d), 41, 42(1), 43, 44(1), 44(3), 44(4)(a),(c),(e),(g), 45(1), 45(2)(c), 45(5), 47(5), 49(1), 54(5)
  • Labour Relations Act, 2007Sections 2, 65, 76, 78(1)(a)(b), 79, 80(1)
  • Regulation of Wages (General) (Amendment) OrderSchedule - 2013 and 2015 Orders
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (21)

  • Martin Wamae & 295 others v Bidco Africa Limited
    [2019] eKLR (also cited as [2018] eKLR)
  • Kenya Plantation and Agricultural Workers Union v Carzan Flowers
    [2013] eKLR
  • Banking Insurance and Finance Union Kenya v Consolidated Bank of Kenya Limited
    [2014] eKLR
  • Geoffrey Mwakio v Kenya Broadcasting Corporation
    [2015] eKLR
  • George Njenga Kinyua v China Road and Bridge Corporation
    2021 eKLR
  • Okumu Aziz Ramadhan v China Roads and Bridge Corporation (Kenya)
    2021 eKLR
  • Simon Papa Imo v Athi River Shalom Community Hospital
    [2021] eKLR
  • Federation of Kenya Employers v Universities Academic Staff Union & 5 others
    [2018] eKLR
  • Peter Karanja Ndungu & 35 others v Bidco Oil Refineries Limited
    [2020] eKLR
  • Zelpha Khagoitsi Lugalia v Aga Khan University Hospital
    [2019] eKLR
  • Lamathe Hygiene Food v Wesley Patrick Simasi Wafula & 8 others
    [2016] eKLR
  • CMC Aviation Limited v Mohammed Noor
    [2015] eKLR
  • Pius Machafu Isindu v Lavington Security Guards Limited
    [2017] eKLR
  • Standard Group Limited v Jenny Luesby
    [2018] eKLR
  • Kenafric Industries Limited v John Gitonga Njeru
  • Naima Khamis v Oxford University Press (E.A) Ltd
    [2017] eKLR
  • Loice Otieno v Kenya Commercial Bank Ltd
    [2013] eKLR
  • Grace Gacheri Muriithi v Kenya Literature Bureau
    [2012] eKLR
  • Fredrick Were v MK Jeffreys Hauliers
    [2013] eKLR
  • Kenfreight (EA) Ltd v Benson K. Nguti
    [2016] eKLR
  • Kenya Union of Commercial Food and Allied Workers v Meru North Farmers Sacco Limited
    [2013] eKLR
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

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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, "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.