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ELRCPartially AllowedPetition (ELRC Constitutional Petition)· [2024] KEELRC 1107 (KLR)

Obiero v Metal Crows Limited (Petition 53 of 2019) [2024] KEELRC 1107 (KLR)

Employment and Labour Relations Court
8 May 2024
MOMaureen Onyango
4,122 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that firing a worker without a hearing and using police to detain him unlawfully cost the employer over Kshs 770,000 plus interest and costs.

What this practically means

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Executive summary

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The petitioner, a motor vehicle/forklift mechanic employed by the respondent from September 2016 at a salary of Kshs. 45,000, was arrested at his workplace on 17 October 2018 by police from Industrial Area Police Station, detained for about 24 hours without charge or an Occurrence Book entry, and then issued with a termination letter dated 23 October 2018 citing loss of trust. He petitioned the ELRC seeking declarations of violations of Articles 27, 28, 29(a), 41, 49 and 50, compensation of Kshs. 10 million, and 12 months' salary for unfair termination. The respondent contended he was found in possession of company property, was lawfully reported to the police, and that the dismissal was for gross misconduct. On the first issue, the court held the petition was properly before it, as the alleged violations of Articles 29(a), 49 and 50 could not be resolved in an ordinary Employment Act claim, noting it had already dismissed a preliminary objection on the same grounds on 25 May 2022. On constitutional violations, the court found only Article 29(a) was breached: the arrest and overnight detention followed by release without charge or OB entry was arbitrary and without just cause, actuated by malice. Claims under Articles 27, 28 and 41 failed, and Articles 49 and 50 claims failed because the duty bearer was the police, who were not joined. On termination, the respondent had conducted no disciplinary hearing as required by the mandatory section 41 of the Employment Act and did not prove the reasons for termination, rendering the dismissal unfair under section 45(2). The court issued declarations that the termination was unfair, unlawful and unconstitutional and that the seizure and detention violated Article 29(a), awarded Kshs. 500,000 for the rights violation and six months' salary (Kshs. 270,000) for unfair termination, with interest and costs of the petition.

Key legal issues

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01

Whether the petition was properly before the court or should have been a regular employment claim

Holding

The petition was proper because it alleged constitutional violations that cannot be resolved in an ordinary Employment Act claim

Reasoning

The Respondent argued the petition circumvented the Employment Act, relying on Francis Atonya Ayeka. The court held the Petitioner's allegations of violations of Articles 29(a), 49(1)(a) and 50(2) were violations that cannot be addressed under an ordinary claim. The court also noted it had already dismissed a preliminary objection on the same grounds in its ruling of 25th May 2022.

p. 5
02

Whether the Respondent violated the Petitioner's constitutional rights

Holding

Only Article 29(a) (freedom and security) was violated; Articles 27, 28, 41(1), 49 and 50 claims failed

Reasoning

The arrest and 24-hour detention without charge or OB entry was arbitrary and without just cause, with malicious motive by the Respondent. However, no discrimination was demonstrated under Article 27; a one-off incident is not an unfair labour practice under Article 41; and the duty bearers for Articles 49 and 50 were the police, who were not joined.

p. 6
03

Whether the termination of employment was unfair

Holding

The termination was unfair under section 45(2) for want of a hearing and unproved reasons

Reasoning

Under sections 41, 43 and 45 of the Employment Act, an employer must hear the employee before termination and prove the reasons. The Respondent relied only on section 44 gross misconduct but never conducted a disciplinary hearing, and did not prove the alleged possession of company property. Section 41 is mandatory and was not complied with.

p. 8
04

What remedies the Petitioner is entitled to

Holding

Declarations, Kshs. 500,000 for the Article 29(a) violation, six months' salary (Kshs. 270,000) for unfair termination, interest and costs

Reasoning

Having found violation of Article 29(a) and unfair termination, the court granted declarations and compensation, reducing the claimed Kshs. 10 million to Kshs. 500,000 and the claimed 12 months' salary to 6 months' salary, with interest and costs of the petition.

p. 9

Legal principles established

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  • Whether a dispute raises a constitutional question depends on how it is prosecuted and framed, determined case by case
  • Arrest and detention followed by release without charge or OB entry evidences arbitrary deprivation of freedom
  • Before summary dismissal under section 44, an employer must comply with the mandatory hearing requirements of section 41 of the Employment Act
  • Termination without hearing or proof of reasons is unfair under section 45(2)

Court orders

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  1. 1.A declaration that the termination of the Petitioner's employment was unfair and unlawful
  2. 2.A declaration that the letter of termination dated 23.10.2018 is unconstitutional, illegal and unlawful
  3. 3.A declaration that the Petitioner's termination was illegal
  4. 4.A declaration that the Respondent's action of calling in the police to seize and detain the Petitioner violated his rights under Article 29(a)
  5. 5.Compensation of Kshs. 500,000 for violation of the Petitioner's rights under Article 29(a)
  6. 6.Compensation for unfair termination of 6 months' salary being Kshs.45,000 x 6 = Kshs.270,000
  7. 7.Interest on the compensation amounts at court rates till payment in full
  8. 8.Costs of the petition

Authorities

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Legislation

  • Constitution of KenyaArticles 2, 3, 10, 19(1) & (2), 20(1) & (2), 22, 23, 27(1), 28, 29(a), 41(1), 48, 49(1)(a)(i)(c) & (h), 50(2), 159, 258(1), 259(1)
  • Employment Act 2007Sections 41, 42(1), 43, 44, 45, 45(2), 45(3)
  • Employment and Labour Relations Court ActSection 12
  • Labour Relations Act

Cases cited (8)

  • Francis Atonya Ayeka v Kenya Police Service & Another
    [2017] eKLR
  • Hakiziman Abdoul Abdulkarim v Arrow Motors EA Ltd & Another
    (2017) eKLR
  • Fredricks & Others v MEC for Education & Training, Eastern Cape & Others
    (200) 23 (LJ.81)
  • Bia Tosha Distributors Limited v Kenya Breweries Limited
    Petition No. 15 of 2020
  • Benta A Khayo v Margaret Nderitu T/a Olive Gardens
    ELRC Cause No. 1025 of 2012
  • John Rioba Maugo v Railey Security Services Limited
    [2016] eKLR
  • David Wanjau Muhoro v Ol Pajeta Ranching Limited
    [2014] eKLR
  • Kenya Power & Lighting Company Limited v Aggrey Lukoritowasike
    [2017]
Jurisdiction invoked
Articles 22, 23, 258(1) and 259(1) of the Constitution; Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Obiero v Metal Crows Limited (Petition 53 of 2019) [2024] KEELRC 1107 (KLR)", Case Analysis (2024). Petition (ELRC Constitutional Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1107/eng@2024-05-08

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