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ELRCPartially AllowedNot stated in the judgment (Memorandum of claim dated March 3, 2020)· [2023] KEELRC 1021 (KLR)

Kenya Union of Commercial Food and Allied Workers v Sameer Agricultural and Livestock Kenya Ltd (Cause E020 of 2020) [2023] KEELRC 1021 (KLR)

Employment and Labour Relations Court
25 April 2023
4,007 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled an employer cannot defend a dismissal without evidence of a fair disciplinary hearing, and unions can sue for members even without a recognition agreement.

What this practically means

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Executive summary

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A trade union sued the respondent employer on behalf of its member, Benson Odoyo Achieng, a boiler operator employed on January 30, 2018 on a three-year contract earning Kshs 30,000 gross, who was summarily terminated on September 24, 2018 following a confrontation with the Salgaa plant production manager, Mr Amod, on September 14, 2018. The union claimed the grievant was terminated without notice or a fair disciplinary hearing and sought declarations of unfairness, reinstatement, or alternatively notice pay, salary arrears, pro-rata leave, a certificate of service and costs. The respondent denied the union's locus standi for want of a recognition agreement, asserted the grievant assaulted his supervisor, and maintained the termination was for gross misconduct after the grievant refused to participate in a disciplinary hearing. After failed conciliation, the matter proceeded to full hearing at which the grievant and the respondent's legal officer testified. The court first rejected the locus objection, holding that Article 41 of the Constitution entitles any person to join and be represented by a trade union irrespective of a recognition agreement. On the merits, the court found the record unclear: the respondent produced no minutes of the disciplinary hearing, no evidence of the alleged police report, and no evidence of any payment made to the grievant, and had declined to attend conciliation. The court found the grievant had proved his case, declined reinstatement as a live issue, and awarded the claim as prayed plus 8 months' salary (Kshs 240,000) as compensation for unlawful termination, totaling (as stated in the judgment) Kshs 316,225, a certificate of service, costs and interest from the date of judgment.

Key legal issues

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01

Locus standi of a trade union without a recognition agreement

Holding

The claimant union has locus to sue on behalf of its member notwithstanding the absence of a recognition agreement or CBA.

Reasoning

The court held that Article 41 of the Constitution grants every person the right to join and participate in the affairs of a trade union, and that this right is not limited by any recognition agreement. The grievant was an active member of the union and therefore the union could represent him regardless of the respondent's objections under section 54 of the Labour Relations Act.

p. 7
02

Procedural fairness of the termination

Holding

The termination was unfair because the court was left without clarity on what transpired at the disciplinary hearing; no minutes were produced and the respondent did not attend conciliation.

Reasoning

The court noted the grievant's evidence that he attended the show cause hearing, declined to write a statement he alleged he was forced to write, and was issued a termination letter the same day. The respondent, as custodian of the disciplinary process, failed to produce the minutes or other evidence of the hearing, and also failed to attend conciliation. In the absence of clarity, the court found the grievant had established his case.

p. 8
03

Justification of the reason for termination

Holding

The respondent failed to prove the alleged assault and gross misconduct; the grievant was awarded compensation for unlawful termination.

Reasoning

Although the respondent alleged the grievant assaulted his supervisor and reported the matter to police, no evidence was produced to support this. The court found that allegations of payment to the grievant were also unsupported by evidence. Consequently the reasons for termination were not substantiated and 8 months' salary compensation under section 49 of the Employment Act was awarded.

p. 8

Legal principles established

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  • An employee's constitutional right to join a trade union under Article 41 and be represented by it is not conditional on the existence of a recognition agreement with the employer.
  • Where an employer fails to produce evidence of the disciplinary hearing (such as minutes) and declines to attend conciliation, it risks a finding that the employee has proved unfair termination.

Court orders

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  1. 1.One month salary in lieu of notice Kshs 30,000
  2. 2.Salary for August 2018 Kshs 30,000
  3. 3.15 days worked in September 2018 Kshs 15,000
  4. 4.Pro-rata leave of 7 months Kshs 12,250
  5. 5.8 months' salary as compensation for unlawful termination Kshs 240,000 (total award Kshs 316,225)
  6. 6.Issuance of a certificate of service
  7. 7.Respondents to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Labour Relations Actsection 54
  • Constitution of Kenya, 2010Article 41
  • Employment Actsections 10, 41, 43, 44(4), 44(4)(e), 49, 74
  • Fair Administrative Action Act (referred to as principles of Fair Administrative Action)not specified
  • Civil Procedure Actsection 27(1)

Cases cited (12)

  • Anthony Mkala Chitavi v Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Christian Samba Obath v Fossil Fuels Limited
    [2016] eKLR
  • Paul Mumo Kitavi v ACME Containers Limited
    [2019] eKLR
  • Konig v Kanjee Naranjee Properties Limited
    [1968] EA 233
  • Simon P W Karimi v Kenya Commercial Bank Limited and another
    [2005] eKLR
  • Korich v Fairview Hotel Limited
    (Cause 594 of 2018) [2023] KEELRC 499 (KLR)
  • Dede Esi Amanor Wilks v Action Aid International
    [2014] eKLR
  • Banking Insurance & Finance Union (Kenya) v Barclays Bank of Kenya Ltd
    [2014] eKLR
  • Communication Workers Union v Safaricom Limited
    [2014] eKLR
  • Kenya Union of Employees of Voluntary and Charitable Organizations (KUEVACO) v Board of Governors and Maina Wanjigi Secondary School
    [2015] eKLR
  • Independent Electoral and Boundaries Commission and Another v Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Adetoun Oladeji (NIG) LTD v Nigeria Breweries PLC
    S C 91/2002
Jurisdiction invoked
Original employment and labour relations jurisdiction under Article 162(2)/165 of the Constitution; court exercised jurisdiction after referral of an unresolved trade dispute by a conciliator under the Labour Relations Act

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 Union of Commercial Food and Allied Workers v Sameer Agricultural and Livestock Kenya Ltd (Cause E020 of 2020) [2023] KEELRC 1021 (KLR)", Case Analysis (2023). Not stated in the judgment (Memorandum of claim dated March 3, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1021/eng@2023-05-04

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