Kenya Tertiary and Schools Workers Union v Heltz Driving School (Academy) (Cause 1610 of 2018) [2025] KEELRC 4 (KLR)
The bottom line
#A Kenyan employment court ruled that firing workers without contacting them or holding a hearing is unlawful, awarding two driving instructors compensation plus costs.
What this practically means
#Executive summary
#Key legal issues
#Competence of proceedings: lack of recognition agreement, legal capacity of respondent, and sub judice
Proceedings properly before the Court. Representation does not require recognition; the respondent entity carrying on the same business could be sued despite mutation; and the parallel Cause No 1244 of 2018 concerned recognition, not termination, so was not sub judice.
The court held that recognition is not a precondition to union representation, citing Modern Soap Factory as affirmed by the Court of Appeal. The new entity (Heltz School of Advanced Driving Limited) carried on the same business as the late Osman Ahmed Bachani's, so employees could pursue accrued rights despite the employer's mutation. Cause No 1244 of 2018 concerned recognition for collective bargaining, a distinct dispute from the termination claim.
Whether termination of the Grievants' employment was unlawful
The claim of unlawful termination was proved; the defence of desertion/absconding failed.
Absconding is a serious offence that may justify dismissal but must be proved. Following Richard Kiplimo Koech v Yako Supermarket Ltd, an employer alleging abscondment must show efforts to reach the employee. The Respondent made no such efforts, so the desertion defence failed and the Grievants' averment of unlawful termination stood unchallenged. The failure to afford a hearing before termination informed the compensation awarded.
Whether the Grievants were entitled to the remedies sought
Compensation for unlawful termination (8 and 6 months' salary) and one month's pay in lieu of notice awarded; underpayment, overtime, house allowance, leave, leave travelling allowance and severance claims disallowed as unproved.
The court considered the Grievants' periods of service and employment records, and the Respondent's failure to grant a hearing before termination, in fixing compensation at 8 months (1st Grievant) and 6 months (2nd Grievant). Notice pay was awarded for each. The pecuniary claims of underpayment, overtime, house allowance, leave, leave travelling allowance and severance were not proved and were disallowed.
Legal principles established
#- A trade union does not need a recognition agreement with an employer to exercise the right of representation of its members
- Employees cannot be barred from pursuing accrued employment rights merely because the employer entity has mutated or changed form
- An employer alleging that an employee absconded duty must demonstrate efforts made to reach out to the employee
- An employer who fails to prove desertion and did not afford the employee a hearing cannot defend a termination claim
Court orders
#- 1.Award of 8 months' salary (Kshs. 108,000) to 1st Grievant and 6 months' salary (Kshs. 66,000) to 2nd Grievant as compensation for unlawful termination of employment
- 2.Award of one month's salary in lieu of notice to each Grievant (Kshs. 13,500 and Kshs. 11,000 respectively)
- 3.Interest at court rates from the date of judgment until payment in full
- 4.Issuance of certificates of service to the Grievants
- 5.Costs of the case to the Grievants/Claimant
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (original employment dispute)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Tertiary and Schools Workers Union v Heltz Driving School (Academy) (Cause 1610 of 2018) [2025] KEELRC 4 (KLR)", Case Analysis (2025). Cause No 1610 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/4/eng@2025-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.