Odero & 226 others v Kenya Kazi Services Limited (Cause E497 of 2020) [2023] KEELRC 1953 (KLR)
The bottom line
#Kenya's Employment Court ruled that 227 security guards who joined an illegal strike were fairly dismissed, and the lead organiser personally pays the company's legal costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the gathering at Bamboo on 28th January 2019 was a meeting convened by management or industrial action
It was an industrial action (a strike) convened by the Claimants, not a management meeting
Kimani circulated incendiary messages calling Guards to converge at Bamboo with no shift handover; Manning was drawn in to avert a crisis. The Guards ceased work in concert to press overtime demands. Uniforms did not mean they were on duty - they were absent from their designated place of work.
Whether the strike was protected
The strike was unprotected for multiple reasons: it defied subsisting court orders, sought enforcement of a compromised judgment, expanded its grievances, concerned an essential service, and breached Part X of the Labour Relations Act
The court order of 28th September 2018 in Petition 49 of 2018 was still in force. The dispute on the award had been compromised by consent orders and a fresh 2013 CBA. Security at the US Embassy was an essential service, judicially noted after the DusitD2 attack. Non-compliance with strike procedure also removed protection.
Whether the summary dismissal was substantively and procedurally fair
Dismissal was substantively and procedurally fair under Sections 41, 43, 44, 45 and 46 of the Employment Act and Section 80 of the Labour Relations Act
Participation in an unprotected strike is a valid and fair reason for dismissal. Show-cause letters were issued, Claimants replied, were suspended, individually heard by 10 panels, dismissed, and had a right of appeal exercised by at least 175. No substantial procedural defect was found.
Whether non-union Employees enjoy the right to strike
Article 41(2)(d) grants every worker the right to strike, exercisable individually or through a trade union
The right to strike is both associational and individual. The Claimants, though union-less, had the right; but exercising it within legal protection is difficult for non-union Employees since the Labour Relations Act is premised on organized labour.
Validity of joining certain Claimants to the claim
Inclusion of Claimants with no cause of action (retired, dismissed later for unrelated reasons, or with no arrears) was irregular and illegal, casting doubt on their authority to the lead Claimant
Francis Kaloli Okoth retired in 2018; Kennedy Wafula Kasili was dismissed in 2021 for unrelated reasons; Wanzala was paid and executed a discharge; Akure and Njiru had no arrears and were compelled to join the strike. This suggested some Claimants were joined against their will.
Legal principles established
#- An Employee is not at work merely because he wears his uniform; he must be at his designated place of work
- Participation in a lawful strike is not a fair reason for dismissal; participation in an unlawful strike is a fair reason
- Strikers who give their own interpretation of court judgments and seek to enforce them through strikes do not enjoy legal protection
- The Court may find a service to be essential even if not listed in the 4th Schedule, and strike in it unprotected
- Non-union Employees have a constitutional right to strike, but their strikes are likely to fall outside statutory protection
Court orders
#- 1.The Claim is dismissed
- 2.Costs to the Respondent, to be paid by the 131st Claimant, Charles Waweru Kimani
- Jurisdiction invoked
- Original jurisdiction of the Employment and Labour Relations Court under the Employment and Labour Relations Act; matters arising from the Employment Act and Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odero & 226 others v Kenya Kazi Services Limited (Cause E497 of 2020) [2023] KEELRC 1953 (KLR)", Case Analysis (2023). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1953/eng@2023-08-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.