Omollo & 9 others v Agro-Tech Consultants & another (Cause 374 of 2019) [2023] KEELRC 1079 (KLR)
The bottom line
#A Kenyan court dismissed both employees' unfair termination claims and the employer's counterclaim because the employees ran an unlawful go-slow while the employer had failed to pay salaries.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction/geographical venue of the ELRC
The Court had jurisdiction; the ELRC has no geographical limit and the Respondents' counterclaim before it estopped them from objecting
Relying on authority that there is no requirement under the Industrial Court Act and its Procedure Rules to file employment disputes in the geographical jurisdiction where they arise, and the 1st Respondent being domiciled in Nairobi, the objection failed. The Respondents also submitted to jurisdiction by filing a counterclaim and admitted jurisdiction over it, and cannot approbate and reprobate.
Whether termination was unfair
Not found unfair; the Claimants withdrew services through an unlawful go-slow leading to the end of their contracts
Although the Respondent's witness confirmed no notices to show cause or hearings were given, the court found on the evidence that the Claimants withdrew services in a go-slow not undertaken in accordance with the law, which led to the impasse ending their contracts. Because the Claimants failed to follow the statutory dispute-resolution route (reporting to the Labour office or conciliation), the unfair termination claim failed.
The Counterclaim for notice pay and constitutional damages
Dismissed because the employer's own breach (non-payment of salaries) partly caused the termination
The evidence showed the 2nd Respondent failed in its obligation as an employer to pay salaries on time. That failure disentitled it to notice pay since the ending of the contracts was partly attributable to it. No evidence proved the alleged infringement of patients' rights under Article 43(1)(a).
Legal principles established
#- An employer's failure to pay salaries as and when they fall due disentitles it from claiming notice pay where termination is partly attributable to that failure
- A go-slow amounts to withdrawal of services and where employees fail to follow the law in engaging in it, resulting in the end of their contracts, their claim for unfair termination fails
Court orders
#- 1.The Claimants' suit is dismissed
- 2.The Respondents' Counterclaim is dismissed
- 3.No order as to costs in respect of both the suit and the counterclaim
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Industrial Court Act and Employment and Labour Relations Court Act; dispute over geographical venue resolved on authority that the ELRC has no limit in its geographical jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omollo & 9 others v Agro-Tech Consultants & another (Cause 374 of 2019) [2023] KEELRC 1079 (KLR)", Case Analysis (2023). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1079/eng@2023-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.