Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No E6499 of 2020· [2023] KEELRC 2998 (KLR)

Nderitu & 94 others v Flower City (K) Limited (Cause E6499 of 2020) [2023] KEELRC 2998 (KLR)

Employment and Labour Relations Court
22 November 2023
JGJacob Gakeri
5,816 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

#

A Kenyan flower farm unfairly terminated workers after claiming they deserted, but only workers who signed the representation letter got paid.

What this practically means

#

Executive summary

#
Ninety-five Claimants, former employees of a flower farm at Kithimani, sued the Respondent alleging breach of contract and unfair termination after it stopped paying salaries in 2019 amid financial distress, culminating in strikes, go-slows and sit-ins in May 2019 and the cessation of operations. They sought declarations, salary arrears of Kshs.1,837,877.16, salary in lieu of leave, refund/remission of NHIF and NSSF deductions, severance pay, general damages for unfair termination and costs. The Respondent contended the Claimants deserted duty, that the suit was incompetent for lack of signed authority by all Claimants and improper joint mandate, and that all dues were paid. The court framed three issues: competency of the suit, desertion versus unfair termination, and entitlement to reliefs. It held that one of two jointly appointed representatives could act alone and that an undated Letter of Authority was valid, but Rule 9(2) of the ELRC Procedure Rules required signature by all represented parties; non-signatories' claims remain unprosecuted. On termination, the employer failed to prove desertion or to demonstrate any effort to contact the Claimants, issue show-cause notices or conduct a fair disciplinary process, so termination was unfair substantively and procedurally. Reliefs were largely scaled down: only 15 days' salary for May 2019 and compensation equivalent of two months' salary under Section 49(1)(c) were awarded; leave, NSSF/NHIF, severance and general damages claims failed. Judgment was entered for the signatory Claimants with costs and interest, dated and delivered virtually at Nairobi on 22nd November 2023 by Dr. Jacob Gakeri, Judge.

Key legal issues

#
01

Competency of representative suit where joint appointees did not act jointly and some Claimants did not sign the Letter of Authority

Holding

One of two joint appointees could act alone as the authority did not require joint action; undated authority was valid; but Claimants who did not sign the Letter of Authority have no competent claim prosecuted on their behalf

Reasoning

The Letter of Authority did not state that the two appointees had to act jointly, so the 1st Claimant acting alone did not vitiate the suit. Rule 9(2) of the ELRC Procedure Rules is mandatory on signatures by all represented parties, and the proviso allows the court to dispense with the requirement. Applying Chalicha Farmers and related decisions, the claims of non-signatories remain unprosecuted.

p. 8
02

Whether the Claimants deserted employment or were unfairly terminated

Holding

Termination was unfair; desertion not proved

Reasoning

The employer pleaded desertion but tendered no evidence of steps taken to have the Claimants resume duty, no show-cause notices or warnings, and no disciplinary process under Section 41. The employer bore the burden of justifying termination under Sections 43 and 45 and failed to discharge it, notwithstanding the Claimants' strikes and downing of tools.

p. 11
03

Quantum of relief

Holding

Claimants awarded salary for 15 days worked in May 2019 and compensation equivalent of 2 months' salary under Section 49(1)(c), given short service, contribution to termination and the 2 week resumption

Reasoning

Bank statements showed salaries paid on 22nd May and 8th April 2019, so arrears were not proved beyond the 15 days worked in May. For compensation the court weighed short tenure (about 3 years), the Claimants' strikes without notice, humiliation of the CEO and non-expression of wish to continue employment, settling on the equivalent of 2 months' salary.

p. 13

Legal principles established

#
  • For a termination of employment to pass muster it must be substantively justifiable and procedurally fair
  • An employer alleging desertion must prove it and demonstrate steps taken to contact the employee and put them on notice before termination
  • A suit instituted on behalf of others requires a written Letter of Authority signed by all parties represented; those who do not sign cannot be represented
  • An undated Letter of Authority does not vitiate the authority or render the suit incompetent
  • The burden of proving desertion rests on the employer

Court orders

#
  1. 1.Declaration that termination of the Claimants employment was in violation of the provisions of the Employment Act, 2007
  2. 2.Salary for 15 days for the month of May 2019
  3. 3.Equivalent of 2 months salary as compensation under Section 49(1)(c) of the Employment Act, 2007
  4. 4.Costs of this suit to the Claimants
  5. 5.Interest at court rates from date of judgment till payment in full
  6. 6.Reliefs limited to Claimants who signed the Letter of Authority authorising Mr. Simon Muhari Nderitu to represent them

Authorities

#

Legislation

  • Employment Act, 2007Sections 40, 40(1)(g), 41, 43, 45, 49(1)(c)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 9(1), 9(2) and proviso
  • Civil Procedure Rules, 2010Order 1 Rule 13(1); Order 21 Rule 1
  • National Health Insurance Fund Act, 1998general (mandatory contributions)
  • Constitution of Kenya, 2010Articles 159(2)(d), 48
  • Civil Procedure Act (Chapter 21)Section 1B

Cases cited (16)

  • Jackson M. Italakua & another v Kenya Farmers Association Limited
    (2021)
  • CMC Aviation Ltd v Mohammed Nour
    (2015) eKLR
  • Monica Wanza Mbavu v Roofspec & Allied Works Co. Ltd
    (2021) eKLR
  • Chalicha Farmers Co-operative Society Ltd v George Odhiambo & 9 others
    (1987) eKLR
  • Justo Ngoka & 255 others v Rai Ply Wood (K) Ltd & 2 others
    Eldoret HCCC No. 69 of 2001
  • Ndungu Mugoya & 473 others v Stephen Wang'ombe & 9 others
    (2005) eKLR
  • Savala & another v Ndanyi
    (2022) KEELC
  • John Kariuki & 347 others v John Mungai Njoroge & 8 others
    Nakuru HCCC No. 152 of 2003
  • Pius Machafu Isindu v Lavington Security Guards Ltd
    (2017) eKLR
  • Walter Ogal Anuro v Teachers Service Commission
    (2013) eKLR
  • Seabolo v Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Ronald Nyambu Daudi v Tornado Carriers Ltd
    (2019) eKLR
  • Felistas Acheha Ikatwa v Charles Otieno
    (2018) eKLR
  • Simon Mbithi Mbane v Inter Security Services Ltd
    (2018) eKLR
  • Joseph Nzioka v Smart Coatings Ltd
    (2017) eKLR
  • Judith Atieno Owuor v Sameer Agriculture & Livestock Ltd
    (2020) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Employment and Labour Relations Court (Procedure) Rules, 2016

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Nderitu & 94 others v Flower City (K) Limited (Cause E6499 of 2020) [2023] KEELRC 2998 (KLR)", Case Analysis (2023). Cause No E6499 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2998/eng@2023-11-22

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