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ELRCAllowedELRC Cause (Kitale) — Memorandum of Claim dated 5th January, 2022, filed 7th January, 2022· [2023] KEELRC 2344 (KLR)

Kenya National Private Security Workers Union v Managing Director Radar Security Ltd. (Cause E002 of 2022) [2023] KEELRC 2344 (KLR)

Employment and Labour Relations Court
28 September 2023
MOM. ONYANGO
1,362 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan employer that fired three security guards for alleged strike activity without a hearing lost and must pay over Ksh. 1 million plus interest.

What this practically means

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Executive summary

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The Claimant, a trade union registered under the Labour Relations Act, brought an undefended Memorandum of Claim dated 5th January 2022 on behalf of three grievants — Geofrey Makhoha Wanjofu, Erick Musonye (named in the claim as Erick Makau) and Victor Otieno Osewe — security guards employed by the Respondent, Radar Ltd, at its Eldoret branch. The grievants were summarily dismissed by letters dated 27th April 2019 on allegations that they organised, participated in and incited colleagues to strike over delayed salaries at the Raiply wood premises, allegations they denied in written statements recording that the salary issue was resolved after their manager addressed them. The Claimant asserted the grievants were denied a hearing contrary to sections 41 and 43(1) of the Employment Act, and that the Respondent ignored conciliation, leading to a certificate of unresolved dispute under sections 69 and 73 of the Labour Relations Act. The Respondent entered appearance but filed no defence and did not attend court; after confirming proper service, the court directed the undefended suit to proceed by pleadings, documents, affidavits and written submissions. Holding that the grievants were never given an opportunity to defend themselves, the court entered judgment for the Claimant as prayed, awarding each grievant Ksh. 360,765 (grand total Ksh. 1,082,295) covering notice pay, underpayment of wages, overtime, public holidays, unpaid salary for February and March 2019 and annual leave for three years. The court further awarded the Claimant Ksh. 50,000 as reimbursable costs and expenses, with interest on the decretal sum at court rates from the date of judgment until payment in full. Judgment was delivered virtually and signed at Kitale on 28th September 2023 by M. Onyango, Judge.

Key legal issues

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01

Whether the summary dismissal of the Grievants was procedurally fair

Holding

The dismissal was unfair because the Grievants were never accorded a hearing as required by sections 41 and 43(1) of the Employment Act.

Reasoning

The record showed the Grievants were only asked to record written statements explaining why they did not report for duty on 14th April 2019, in which each denied incitement. They were nonetheless summarily dismissed by letters dated 27th April 2019 for gross misconduct. No hearing or opportunity to defend themselves against the accusations was afforded, contrary to the Employment Act.

p. 2
02

Consequences of the Respondent's failure to file a defence or attend conciliation or court

Holding

Judgment was entered against the Respondent on the undefended claim, awarding the sums prayed for.

Reasoning

The Respondent entered appearance through Chomba & Mbugua Advocates but filed no defence. It also failed to attend conciliation before C. Chemursoi, who issued a certificate of unresolved dispute. Having satisfied itself that the Respondent was properly served and had failed to attend court, the court directed the undefended suit to proceed by pleadings, documents, affidavits and written submissions, and entered judgment as prayed.

p. 5

Legal principles established

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  • An employer must give an employee an opportunity to defend himself before summary dismissal, as required under sections 41 and 43(1) of the Employment Act; failure to do so renders the dismissal unfair.

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent as prayed
  2. 2.Award of Ksh. 360,765 to each of Geofrey Makhoha Wanjofu, Erick Musonye and Victor Otieno Osewe (grand total Ksh. 1,082,295)
  3. 3.Award of Ksh. 50,000 to the Claimant on account of reasonable reimbursable costs and necessary expenses of the suit
  4. 4.The decretal sum to attract interest at court rates from date of Judgment till payment in full

Authorities

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Legislation

  • Labour Relations Actsections 69 and 73
  • Employment Actsections 41 and 43(1)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the trade dispute following a certificate of unresolved dispute under sections 69 and 73 of the Labour Relations Act

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 National Private Security Workers Union v Managing Director Radar Security Ltd. (Cause E002 of 2022) [2023] KEELRC 2344 (KLR)", Case Analysis (2023). ELRC Cause (Kitale) — Memorandum of Claim dated 5th January, 2022, filed 7th January, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2344/eng@2023-09-28

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