Oyuga & 46 others v Kenya Airways Company Limited (Employment and Labour Relations Cause 2390 of 2017) [2023] KEELRC 2913 (KLR)
The bottom line
#Kenya's Employment Court ordered Kenya Airways to pay 47 fired workers four months' salary plus Ksh 2.7 million each for unfairly sacking them and locking them in overnight.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was a representative action and whether one Claimant could testify for all
The suit was a joint, not representative, action; the 46 Claimants validly authorized Joseph Otieno Oyuga to act, plead and testify for them, and his evidence sufficed for all.
The Further Amended Memorandum of Claim named all 47 Claimants, showing a joint action. The 'Authority to Act, Plead and Testify' instrument dated 4th December 2017, though lacking a cause number, was filed in the cause and listed all 47 Claimants, confirmed by a consent of 21st March 2023. The court held there is no rule barring a litigant from authorizing a person with personal knowledge to testify, distinguishing the authorities relied on by the Respondent. Rule 21 of the ELRC Rules also permits determination without oral testimony by litigants.
Whether the summary dismissal was substantively and procedurally fair
The Claimants engaged in an unprotected industrial action (giving a valid substantive reason), but the dismissal was procedurally unfair because section 41 of the Employment Act and the Respondent's own HR Policy were not followed.
The court found the Claimants, though expected on duty despite the public holiday, abandoned workstations to congregate at the hangar, constituting a strike under the Labour Relations Act without compliance with section 76. However, the three general call letters were not individual show-cause or charge notices, no investigation or Disciplinary Panel was constituted as the Respondent's Human Resource Policy required, and no hearing was afforded, rendering the procedure flawed.
Whether the Claimants were unlawfully detained and their constitutional rights violated
The Respondent unlawfully restrained the Claimants' freedom of movement and subjected them to degrading treatment, violating articles 28, 29 and 39 of the Constitution.
The Respondent had exclusive control of data on when access passes were deactivated and, under section 112 of the Evidence Act, bore the burden of proving the timing; it failed. The court found the passes were deactivated after 1.30 pm on 28th November 2017, and the Claimants exited only after their lawyer's email on 29th November 2017, evidencing unlawful restraint. Denial of food, bath and change of clothes amounted to degrading treatment; less restrictive means were available.
Whether constitutional remedies can issue in an ordinary statement of claim
Yes; rule 7 of the ELRC (Procedure) Rules, 2016 expressly permits enforcement of constitutional rights within a statement of claim.
The Respondent argued constitutional remedies could only issue in a constitutional petition. The court relied on rule 7 of the ELRC (Procedure) Rules, 2016, which provides that a party may seek enforcement of constitutional rights in a statement of claim or other suit, and rejected the objection as unmerited.
Whether the KAA blacklisting/defamation claim could be determined
No; the claim was not specifically pleaded and was therefore impermissible for the court to adjudicate.
A scrutiny of the Further Amended Memorandum of Claim showed the defamation/blacklisting claim was not pleaded; the only reference was in the witness statement regarding discrimination. Applying the principle that parties are bound by their pleadings and evidence at variance with pleadings must be rejected, the court declined to pronounce on that limb.
Legal principles established
#- The Labour Relations Act governs collective labour action whether or not the actors are trade union members; withdrawal of labour by two or more employees acting in combination to press a trade dispute constitutes a strike regulated by Part X of the Act.
- Once an employee tenders prima facie evidence of unfair termination under section 47 of the Employment Act, the burden shifts to the employer to justify the termination under sections 43, 45 and 47.
- An employee forfeits the opportunity to be heard only where the employer demonstrates that the employee snubbed a disciplinary process actually offered; general calls to resume duty are not show-cause or charge documents.
- A litigant may authorize another person with personal knowledge of the facts to testify on their behalf; evidence so tendered, if relevant, is sufficient.
- Constitutional remedies may be sought in an ordinary statement of claim before the ELRC pursuant to rule 7 of the ELRC (Procedure) Rules, 2016.
- A party with exclusive control of data bearing on a fact bears the burden of proving that fact under section 112 of the Evidence Act.
Court orders
#- 1.Declaration that the Respondent's decision to terminate the contracts of service of the 47 Claimants was procedurally unfair for breach of section 41 of the Employment Act and chapter 17 of the Respondent's Human Resource Manual.
- 2.Award to each of the 47 Claimants of compensation for unfair termination equivalent to four months' gross salary, with particulars set out in the table annexed to the judgment; for Claimants lacking exit pay slips, four months' gross salary to be computed from the Respondent's payroll records.
- 3.Declaration that the Respondent violated the Claimants' constitutional right to freedom of movement under articles 29 and 39 of the Constitution.
- 4.Declaration that the Respondent violated the Claimants' constitutional right to human dignity under article 28 of the Constitution.
- 5.Award of Ksh. 2,700,000.00 per Claimant as general damages for violation of constitutional rights and false imprisonment.
- 6.Interest on the sums awarded at court rates from the date of the decision.
- 7.Award subject to applicable statutory deductions under section 49 of the Employment Act.
- 8.Costs of the suit awarded to the Claimants.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations Court (Procedure) Rules, 2016 (including rule 7 for constitutional remedies within a statement of claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oyuga & 46 others v Kenya Airways Company Limited (Employment and Labour Relations Cause 2390 of 2017) [2023] KEELRC 2913 (KLR)", Case Analysis (2023). Not stated in judgment (ELRC Memorandum of Claim, Further Amended 31st January 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2913/eng@2023-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.