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ELRCPartially AllowedNot stated in the judgment· [2023] KEELRC 1651 (KLR)

Kenya Plantation & Agricultural Workers Union v Flamingo Horticulture – Kingfisher Farm (Employment and Labour Relations Cause E023 of 2022) [2023] KEELRC 1651 (KLR)

Employment and Labour Relations Court of Kenya
5 July 2023
4,642 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The claimant Union, on behalf of two grievants, Judith Nekesa Juma and Margaret Muthoni Kiarie, sued the respondent alleging unfair termination from employment as general labourers following allegations of using abusive language towards colleagues on 18th May 2019 and absenting themselves from their work station without permission on 22nd May 2019. The grievants sought reinstatement, payment for the dismissal period, leave dues, gratuity, twelve months' compensation for unfair termination, damages, notice pay, overtime, costs and interest. The respondent defended the dismissal as substantively and procedurally fair, having issued show-cause notices, conducted a disciplinary hearing, allowed an appeal, and paid dues to 24th June 2019; it also challenged the Union's locus and the court's pecuniary jurisdiction. The court framed three issues: jurisdiction, validity of reasons, and due process. It held that the magistrates' courts designated under the gazette notice of 10th June 2018 lacked jurisdiction over trade disputes filed by or against trade unions, so the matter properly lay before this Court. On the merits, the court found that respondent witnesses attested to the abusive language and the grievants admitted the absenteeism, hence valid reasons existed; and since the grievants admitted in cross-examination that their accusers attended the disciplinary hearing, due process was followed and the dismissal was fair and justified. The claim for compensation for unfair dismissal therefore failed. However, the court awarded terminal dues: pro-rata leave of Kshs. 5,246.50 for Judith Nekesa Juma and Kshs. 5,046.50 for Margaret Muthoni Kiarie, and service pay at 15 days per year worked, totalling Kshs. 10,464 for Judith and Kshs. 20,186 for Margaret. The respondents were ordered to pay costs of the suit. Judgment delivered on 5th July 2023 by Hon. Lady Justice Hellen Wasilwa.

Key legal issues

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01

Jurisdiction

Holding

The magistrate's court had no jurisdiction over the trade dispute; the matter properly lies before the ELRC

Reasoning

The gazette notice of 10th June 2018 conferred pecuniary jurisdiction on magistrates of the rank of Senior Resident Magistrate and above over employment disputes where gross monthly pay does not exceed Kshs. 80,000, but expressly excluded trade disputes under the Labour Relations Act. Since the claim was filed by a trade union, the lower courts lacked jurisdiction and the matter belonged to this Court.

p. 9
02

Validity of reasons for termination

Holding

Valid reasons existed - abusive language and absenteeism

Reasoning

The respondent's witnesses (RW-2 and RW-3) attested to hearing the grievants use abusive and threatening language at the water point on 18th May 2019, and a welfare meeting was convened where employees admitted hearing the insults. The grievants admitted absenting themselves from their work station on 22nd May 2019 without permission. On this evidence the court found the reasons for dismissal valid.

p. 9
03

Procedural fairness

Holding

Due process was followed; dismissal fair

Reasoning

The grievants were issued notices to show cause, responded to them, attended a disciplinary hearing accompanied by a colleague of choice, signed the minutes, and appealed to an appellate panel which upheld the dismissal. Although they claimed they were not allowed to face their accusers, in cross-examination they admitted the accusers attended the disciplinary hearing. The process satisfied fairness requirements.

p. 10
04

Terminal dues

Holding

Grievants entitled to pro-rata leave and service pay despite lawful dismissal

Reasoning

Notwithstanding the finding that the dismissal was fair and justified, the court awarded terminal dues consisting of pro-rata leave (half month's salary) and service pay at 15 days' salary per year worked, computed on each grievant's salary, plus costs of the suit to the claimant.

p. 10

Legal principles established

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  • Magistrates' courts specially appointed under section 29 of the ELRC Act lack jurisdiction over trade disputes filed by or against trade unions under the Labour Relations Act
  • Where employees admit absenteeism and witnesses attest to abusive language, valid reasons for dismissal exist
  • An employee who admits accusers attended the disciplinary hearing cannot claim denial of the right to face accusers

Court orders

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  1. 1.Payment of pro-rata leave: Judith Nekesa Juma – ½ x 10,435 = 5,246.50; Margaret Muthoni Kiarie – ½ x 10,093 = 5,046.50
  2. 2.Payment of service pay equivalent to 15 days for each year worked: Judith Nekesa Juma – ½ x 10,435 x 1 = 5,217.50; Margaret Muthoni Kiarie – ½ x 10,093 x 2 = 10,093
  3. 3.Total awards: Judith Nekesa Juma – 10,464/=; Margaret Muthoni Kiarie – 20,186/=
  4. 4.The respondents will pay costs of the suit

Authorities

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Legislation

  • Employment Act, 2007Sections 41, 42, 43, 44(1), 44(4)(d), 45, 47(5), 49
  • Evidence ActSection 107
  • Employment and Labour Relations Court Act, 2011Section 29(3) and (4)(b)
  • Employment and Labour Relations Court (Procedure) Rules, 2016
  • Labour Relations Act, 2007
  • Work Injury Benefits Act, 2007
  • Labour Institutions Act, 2007
  • Occupational Safety and Health Act, 2007

Cases cited (8)

  • Cherokewa Mrisha V Civicon Limited
    [2014] eKLR
  • Loice Otieno V Kenya Commercial Bank Limited
    [2013] eKLR
  • Kenfreight (EA) Limited V Benson K Nguti
    [2016] eKLR
  • Everyline Mamami V One Acre Fund
    [2014] eKLR
  • Kenya Union of Commercial and Food allied Workers V Martin Njeru Mwea
    [2020] eKLR
  • Sotik Highlands Tea Estates Limited V Kenya Plantations and Agricultural Workers Union
    [2017] eKLR
  • Ol Pajeta Ranch Limited V David Wanjau Muhoro
    [2017] eKLR
  • George Onyango Akuti V G4S Security Services Kenya Limited
    [2013] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011 and the Employment and Labour Relations Court (Procedure) Rules, 2016

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 Plantation & Agricultural Workers Union v Flamingo Horticulture – Kingfisher Farm (Employment and Labour Relations Cause E023 of 2022) [2023] KEELRC 1651 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1651/eng@2023-07-05

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