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ELRCDismissedMemorandum of Claim dated 22nd October 2021· [2023] KEELRC 3116 (KLR)

Kenya Building Construction Timber Furniture Industries Employees Union v Radheshyam Ltd (Cause E888 of 2021) [2023] KEELRC 3116 (KLR)

Employment and Labour Relations Court
22 November 2023
DMD. K. Njagi Marete
950 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a union's unfair dismissal claim because the employer's evidence of driver misconduct went unchallenged, so uncountered evidence wins.

What this practically means

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Executive summary

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The Claimant Union brought a memorandum of claim dated 22nd October 2021 on behalf of six grievants formerly employed as heavy commercial drivers by the Respondent, alleging wrongful termination and underpayment. The Union contended that in the absence of a negotiated CBA, the applicable wage schedule was the Building and Construction Wages Order of 2004 read with the 2013 wage order, and that all six grievants were declared redundant between September and November 2019 in breach of the procedure under sections 41–45 of the Employment Act, 2007, without payment of terminal benefits. It sought declarations of unfair dismissal, terminal benefits of Kshs. 1,449,785 and compensation. The Respondent denied that the grievants were union members or that any recognition agreement existed, asserting they were contract employees paid per trip whose contracts ended through their own misconduct - including fuel theft, desertion, and defection to other employers. The court framed three issues: lawfulness of termination, entitlement to relief, and costs. Relying on the unrepudiated witness statement of Joseph Odhiambo, the court found the Respondent's evidence undisturbed and held the terminations lawful on a balance of probabilities. The claim was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether termination of the grievants' employment was wrongful, unfair and unlawful

Holding

Termination was lawful; the grievants' contracts were terminated through their own conduct, not redundancy

Reasoning

The Claimant alleged redundancies conducted contrary to sections 41–45 of the Employment Act, 2007 and claimed terminal benefits. The Respondent pleaded and adduced evidence, including the witness statement of Joseph Odhiambo, that each grievant breached periodic trip-based contracts through fuel theft, desertion, or defecting to competitors. That evidence was not repudiated, so it prevailed on a balance of probabilities.

p. 4
02

Whether the Claimant is entitled to the relief sought

Holding

Not entitled; the relief follows the failed unfair-termination claim

Reasoning

The declarations, terminal benefits and compensation all rested on establishing unlawful termination. Having found lawful termination, the court disentitled the Claimant from all reliefs sought.

p. 4

Legal principles established

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  • A party's unrepudiated and uncountered evidence stands and carries the day on the balance of probabilities

Court orders

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  1. 1.Claim dismissed
  2. 2.Each party to bear their own costs of the suit

Authorities

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Legislation

  • Employment Act, 2007sections 41–45
  • Building and Construction Wages Order2004 read with the wage order of 2013
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance memorandum of claim)

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 Building Construction Timber Furniture Industries Employees Union v Radheshyam Ltd (Cause E888 of 2021) [2023] KEELRC 3116 (KLR)", Case Analysis (2023). Memorandum of Claim dated 22nd October 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3116/eng@2023-11-22

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