Kenya Union of Sugar Plantation and Allied Workers v West Kenya Sugar Company Limited (Employment and Labour Relations Cause 5 of 2023) [2023] KEELRC 2205 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Locus standi of the union to represent grievants
Locus was undisputed as membership was not challenged; union representation is limited to members
The court reminded the union that representation in court is limited to membership, following Rika J in Kenya Hotels and Allied Workers Union v Diani Sea Resort, and that a recognition agreement cannot confer rights to represent all workers. However, since the respondent did not challenge the grievants' membership in the memorandum of response, the issue was undisputed.
Substantive fairness - validity of reasons for dismissal of CW1 and CW3 (bribery allegations)
Reasons not valid; no evidence on balance of probabilities linked grievants to bribery
The employer relied solely on unparticularised Mpesa print-outs produced without the section 65(8) certificate, and cross-examination showed no farmer complained and no broker or permit was identified. The grievants gave reasonable explanations for the transactions (merry-go-round, SACCO t-shirt sales, lending). No proof existed of permits issued to brokers.
Substantive fairness - CW2's alleged abscondment
Termination unlawful; employer failed to prove abscondment and gave no reasons for the verbal dismissal
DW1 confirmed CW2 was an employee but produced no record of abscondment and no reason for the verbal suspension/dismissal was communicated. The NSSF statement proved employment. Having failed to issue any evidence of abscondment or reasons, the respondent unlawfully terminated her services; the burden shifted to the employer to produce records.
Procedural fairness for CW1 and CW3
Procedure unfair: CBA suspension procedure breached, complaint letter was a fishing expedition, investigation reports not availed
The complaint letters pre-condemned the grievants for failing to name brokers. Suspension was extended unilaterally contrary to CBA clause 8(iii), not copied to the union, and disciplinary hearing minutes were never tabled to the grievants. The grievants were denied investigation reports and particulars needed to defend the bribery accusations.
Reliefs
Reinstatement barred by three-year rule; certificates of service and monetary awards granted
Suit filed 3 July 2018, over five years after dismissal; section 12(3)(vii) ELRC Act caps reinstatement at three years. Certificates of service granted under section 51. Compensation awarded under section 49 at 4 months (CW1, CW3) and 6 months (CW2), plus notice pay, half-pay balance, leave and, for CW2, house allowance and underpayment.
Legal principles established
#- A trade union's right to represent employees in court is limited to its members; a recognition agreement cannot confer representation rights over all workers
- The burden of proving the validity of reasons for termination lies with the employer under section 43 of the Employment Act
- Computer print-outs such as Mpesa statements are inadmissible without a certificate under section 65(8) of the Evidence Act
- Suspension and its extension must follow the CBA disciplinary procedure; unilateral extension beyond the agreed 21 days breaches fair procedure
- Equal pay for similar work: arbitrary differentiation in pay for a similar job is discrimination
Court orders
#- 1.Declaration that termination of the Grievants' (CW1, CW2 & CW3) employment was unlawful and unfair
- 2.Reinstatement declined for all grievants
- 3.Service pay claims declined for all grievants
- 4.Certificate of service to issue to all grievants through the claimant under section 51 of the Employment Act
- 5.CW1 awarded Kshs. 220,803.45 (compensation 4 months' salary Kshs. 135,093.40; half pay Kshs. 29,648.05; notice pay Kshs. 56,062)
- 6.CW3 awarded Kshs. 255,627.38 (compensation 4 months' salary Kshs. 128,944; leave 2014 Kshs. 12,937.38; half pay Kshs. 29,648.05; notice pay Kshs. 84,093)
- 7.CW2 awarded Kshs. 426,546.30 (compensation 6 months' salary Kshs. 116,844; leave Kshs. 53,615.80; house allowance Kshs. 89,284.50; notice pay Kshs. 38,948; underpayment Kshs. 127,854)
- 8.All awards subject to statutory deductions under section 49(2) of the Employment Act
- 9.Claimant union awarded Kshs. 30,000 as transport and filing disbursements
- 10.Right of appeal in 30 days and stay of 30 days
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and the Employment and Labour Relations Court Act, sections 41, 43, 44, 45, 49 and 51 of the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Sugar Plantation and Allied Workers v West Kenya Sugar Company Limited (Employment and Labour Relations Cause 5 of 2023) [2023] KEELRC 2205 (KLR)", Case Analysis (2023). Cause No. 62 of 2021 (formerly Kisumu ELRC Cause No. 243 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2205/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.