Kenya Petroleum Oil Workers Union v Ng’amu Limited t/a National Oil Chania (Cause 1537 of 2018) [2024] KEELRC 115 (KLR)
The bottom line
#A Kenyan court awarded two sacked workers pay for unfair termination and leave, but barred older underpayment claims filed too late.
What this practically means
#Executive summary
#Key legal issues
#Whether the terminations of the Grievants were fair and lawful
The terminations were procedurally unfair as no hearing was conducted and no notice or payment in lieu was given; the Respondents, having failed to adduce evidence, did not justify the dismissals
The Respondents were absent at the hearing and led no evidence. The Grievants testified they were never issued show cause letters nor taken through disciplinary hearings. The court found a failure to adhere to section 41 of the Employment Act and awarded notice pay plus three months' salary as compensation for each Grievant.
Whether underpayment and house allowance claims were recoverable
Only claims falling within the limitation period under section 90 were recoverable; historical underpayment and house allowance claims abated
The Union knew of underpayment but took no timely action. Section 90 requires claims within 3 years, and for continuing injuries within 12 months of cessation. The 2nd Grievant was therefore awarded underpayment of Kshs 559/- per month for the last year only, totalling Kshs 7,188/-.
Whether the 2nd Respondent was properly sued
The judgment was entered against the Respondents jointly without a specific finding exonerating the 2nd Respondent; the claim was not struck out against him
The 2nd Respondent argued he was a distinct legal personality wrongly sued, but the court made no specific ruling on this issue and entered judgment against 'the Respondent(s)' generally, effectively proceeding on joint liability.
Entitlement to leave pay
Both Grievants were awarded leave earned and not taken
The court found leave was earned but not taken or paid for. The 1st Grievant received one month's leave at Kshs 16,168/- and the 2nd Grievant Kshs 10,599/-, the court treating the employer as custodian of employment records which it failed to produce.
Legal principles established
#- Limitation under section 90 of the Employment Act caps recovery: claims must be filed within 3 years, and for continuing injuries within 12 months of cessation; underpayment claims not actioned in time abate
- Termination without a hearing and without notice or payment in lieu renders the employer liable to pay notice pay and compensation even where the employee's own conduct is in issue
Court orders
#- 1.Judgment entered for the Claimant against the Respondents: 1st Grievant (Francis Mburu) – leave earned and not taken Kshs 16,168/-, notice pay Kshs 16,168/-, compensation of 3 months Kshs 48,504/-, total Kshs 80,840/-
- 2.2nd Grievant (David Kioko) – leave earned and not taken Kshs 10,599/-, notice pay Kshs 10,599/-, underpayment Kshs 7,188/-, compensation of 3 months Kshs 31,797/-, total Kshs 60,183/-
- 3.The Claimant shall have costs of the suit
- 4.Interest on the sums awarded at court rates from date of judgment till payment in full
- Jurisdiction invoked
- Article 41 of the Constitution of Kenya and the Employment Act (employment and labour relations dispute, conciliation certificate issued)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Petroleum Oil Workers Union v Ng’amu Limited t/a National Oil Chania (Cause 1537 of 2018) [2024] KEELRC 115 (KLR)", Case Analysis (2024). ELRC Cause (Memorandum of Claim dated 16th November 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/115/eng@2024-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.