Kitumu v Simba Apparel Epz Limited (Employment and Labour Relations Cause 73 of 2019) [2023] KEELRC 1666 (KLR)

Employment and Labour Relations Court

29 June 2023

MMM. Mbarũ

1,334 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan manager who joined an unprotected strike lost his unfair termination claims and walked away with only accrued leave pay.

What this practically means

Executive summary

The claimant was employed by the respondent as a Compliance Manager on July 9, 2018 on a gross monthly salary of Kshs 80,325. He claimed that his employment was terminated by summary dismissal on September 13, 2019 without notice, hearing or justifiable reasons, in the context of industrial unrest arising from demands for fresh union elections and an assault of one employee by another. He sought one month's notice pay, compensation of Kshs 963,900, 25 accrued leave days, gratuity and costs. The respondent denied termination, contending that unionisable employees engaged in an unprotected strike and that the claimant, though in management and not unionised, instigated the industrial action and meetings to advance his bid to become human resource manager, then abandoned his employment and demanded terminal dues. The court found that participation in an unprotected strike is a fundamental breach under Section 44(3) of the Employment Act, 2007 permitting summary dismissal under Section 44(4), and that as a management employee the claimant forfeited protections available to unionised employees and frustrated his own employment; he therefore could not claim notice pay or compensation. Gratuity failed as it was not a contractual entitlement. However, the employer produced no records showing annual leave under Section 28 was taken or paid in lieu, so the claim for 25 accrued leave days at Kshs 66,937.50 succeeded. Judgment was entered for the claimant for Kshs 66,937.50 subject to Section 49(2), with each party bearing own costs. Delivered at Mombasa on June 29, 2023.

Key legal issues

Whether there was unfair termination of employment

Holding

No unfair termination; the claimant abandoned his employment by participating in an unprotected industrial action while in management, forfeiting protections available to unionised employees

Reasoning

The claimant, though not unionised and part of management, agitated for union elections and took part in industrial unrest. After a return to work formula, he left work a second time and opted to seek terminal dues rather than re-apply. Participation in an unprotected strike breaches Section 44(3) of the Employment Act and summary dismissal is permitted under Section 44(4). His conduct ended the employment.

p. 3

Whether the claimant is entitled to the remedies sought

Holding

Only the claim for 25 accrued leave days at Kshs 66,937.50 was justified; notice pay, compensation and gratuity were refused

Reasoning

Notice pay and compensation fail because the claimant terminated his own employment by abandonment. Gratuity was not a contractual entitlement. The leave claim succeeded because the employer produced no record showing annual leave was taken or paid in lieu under Section 28 of the Employment Act, 2007.

p. 3

Legal principles established

An employee who takes part in, calls for or incites others to take part in an unprotected strike is in breach of a fundamental term of the employment contract and summary dismissal is allowed
An employee cannot justify participation in an unprotected go-slow by asserting that all other employees were participating; employment is personal and individual
An employer who fails to demonstrate that the statutory right to annual leave was addressed or paid in lieu is liable for accrued leave pay

Court orders

1.Judgment entered for the claimant against the respondent for 25 leave days at Kshs 66,937.50 subject to Section 49(2) of the Employment Act, 2007
2.Each party to bear own costs

Authorities

Legislation

Employment Act, 2007Section 44(3)
Employment Act, 2007Section 44(4)
Employment Act, 2007Section 28
Employment Act, 2007Section 49(2)

Cases cited (2)

Inter-Public Universities’ Councils Consultative Forum of Federation of Kenya Employers v Universities’ Academic Staff Union & 5 others
[2018] eKLR
Joash Alubale Jacob v Mega Pack Limited
[2019] eKLR

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment claim)

Key timeline

Practical implications

Frequently asked questions

Later judgments citing this (2)

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Musyoki v Atisco Security Company Ltd (Cause E570 of 2024) [2026] KEMC 445 (KLR)
[2026] KEMC 445 (KLR)30 Jul 2026applied
Central Furniture Shop Limited v Mohamed (Appeal E097 of 2023) [2025] KEELRC 199 (KLR)
[2025] KEELRC 199 (KLR)30 Jan 2025applied

Cite this brief

Caselaw, "Kitumu v Simba Apparel Epz Limited (Employment and Labour Relations Cause 73 of 2019) [2023] KEELRC 1666 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1666/eng@2023-06-29

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