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ELRCPartially AllowedMemorandum of Claim dated 9th July 2021, filed 6th August 2021· [2025] KEELRC 93 (KLR)

Kenya Engineering Workers Union v Engineering Suppliers Limited (Cause E073 of 2021) [2025] KEELRC 93 (KLR)

Employment and Labour Relations Court
24 January 2025
4,001 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court awarded three workers six months' pay for being placed on indefinite unpaid leave without their consent, while upholding a pay cut they had signed for.

What this practically means

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Executive summary

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The Claimant trade union sued the Respondent company on behalf of three named grievants (Joseph Kadenge, George Mwashumbe and Judith Muteshi Ivayo), alleging that during the Covid-19 pandemic they were subjected to a 40% salary deduction, sent on unprocedural annual and indefinite unpaid leave, denied meetings under the Recognition Agreement and Tripartite MoU, and eventually issued redundancy letters without benefits. The Claimant sought refunds of the wage deductions, payment of wages for the unpaid leave period, alternatively a redundancy declaration with terminal dues, 12 months' salary compensation, certificates of service and costs. The Respondent denied the claims, contending the CBA and Recognition Agreement had been terminated or revoked, the pay cut was consensual and lawful, the grievants refused redundancy offers and refused to resume duty, and that the union lacked locus standi as the grievants were not members. The court held that the Recognition Agreement was never revoked by the National Labour Board nor the dispute referred to conciliation, so the union had locus standi. The 40% salary reduction was found consensual and lawful under Section 10(5) of the Employment Act, and the refund claim was declined. However, the placement of the grievants on unpaid leave without consultation or consent was unlawful, entitling them to six months' pay at the reduced rates, totalling Kshs.635,100/=. The court found no termination of employment occurred, declining the 12 months' compensation and the redundancy declaration prayer. Certificates of service were ordered under Section 51(1) of the Employment Act within thirty days, statutory deductions applied to the awards, and the union was awarded Kshs.60,000/= as litigation reimbursement under Rule 70(4) of the ELRC (Procedure) Rules 2024. Judgment was delivered by Agnes Kitiku Nzei, Judge, on 24th January 2025 at Nairobi.

Key legal issues

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01

Locus standi of the Claimant union

Holding

The Claimant had locus standi because the Recognition Agreement was never cancelled or revoked by the National Labour Board and the Respondent did not refer any dispute for conciliation.

Reasoning

Although the Respondent terminated the CBA by letter dated 30th November 2019 and applied to the National Labour Board for revocation of the Recognition Agreement under Section 54(5) of the Labour Relations Act, the Board never responded or revoked the agreement, and the Respondent never invoked the conciliation route in Section 54(6). The Recognition Agreement therefore remained in place when the suit was filed, entitling the union to sue on behalf of the grievants.

p. 7
02

Lawfulness of the 40% salary reduction

Holding

The reduction was consensual, in writing, and lawful under Section 10(5) of the Employment Act; the refund claim failed.

Reasoning

Each of the three grievants signed and dated letters dated 1st April 2020 agreeing to a pay cut until further notice, during the Covid-19 pandemic. The court was satisfied this variation of the employment contracts complied with Section 10(5) of the Employment Act, and declined the prayer for refund of the deducted sums.

p. 7
03

Lawfulness of the unpaid leave

Holding

Sending the grievants on unpaid leave until further notice was unlawful as it varied their contracts without consent.

Reasoning

After the paid leave ended on 28th May 2020, the Respondent placed the grievants on unpaid leave until further notice. The Respondent adduced no evidence of consultation or consent. The reduced salaries had been paid for only two months. Unilateral variation of contract terms without consent is unlawful, so the grievants were entitled to their reduced salaries from 1st June to 30th November 2020.

p. 8
04

Whether employment was terminated, and claims for 12 months' compensation and redundancy

Holding

No termination occurred; the 12 months' compensation claim failed and the redundancy declaration prayer was misplaced.

Reasoning

The grievants did not accept the redundancy offer letters dated 1st December 2020 within the five days given, and did not resume duty when called by emails. CW-1 indicated he was working elsewhere. The court found the contracts were never terminated, so no compensation under Section 49 was due, and a redundancy declaration could not be granted at the suit's behest.

p. 8
05

Certificates of service

Holding

Allowed pursuant to Section 51(1) of the Employment Act, to be issued within thirty days.

Reasoning

The claim for certificates of service was granted as a statutory entitlement under Section 51(1) of the Employment Act, with the Respondent directed to issue them to the three grievants within thirty days of the judgment.

p. 8

Legal principles established

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  • A recognition agreement not revoked by the National Labour Board nor referred to conciliation under Section 54(6) of the Labour Relations Act remains in force and confers locus standi on the union.
  • An employer cannot unilaterally vary contractual terms of employment, such as by placing employees on unpaid leave, without their consent.

Court orders

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  1. 1.Judgment entered for the Claimant against the Respondent: George Mwashumbe Kshs.360,000/=; Judith Muteshi Ivayo Kshs.168,000/=; Joseph Kadenge Kshs.107,100/=; total Kshs.635,100/=
  2. 2.The awarded sums shall be subject to statutory deductions pursuant to Section 49(2) of the Employment Act
  3. 3.The Claimant Trade Union is awarded Kshs.60,000/= as reimbursement of money spent in the course of litigation pursuant to Rule 70(4) of the ELRC (Procedure) Rules 2024
  4. 4.The Respondent shall issue the three grievants with Certificates of Service pursuant to Section 51(1) of the Employment Act within thirty days from the date of the Judgment

Authorities

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Legislation

  • Labour Relations ActSection 62
  • Labour Relations Act No. 14 of 2007Section 54(5)
  • Labour Relations Act No. 14 of 2007Section 54(6)
  • Employment ActSection 10(5)
  • Employment ActSection 40
  • Employment ActSection 49(2)
  • Employment ActSection 51(1)
  • Employment and Labour Relations Court (Procedure) Rules 2024Rule 70(4)
  • Constitution of KenyaArticles 41 and 47
  • Industrial Relations CharterAppendix C
Jurisdiction invoked
Article 41 and 47 of the Constitution; Employment Act; Labour Relations Act 2007; Employment and Labour Relations Court (Procedure) Rules 2024

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 Engineering Workers Union v Engineering Suppliers Limited (Cause E073 of 2021) [2025] KEELRC 93 (KLR)", Case Analysis (2025). Memorandum of Claim dated 9th July 2021, filed 6th August 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/93/eng@2025-01-24

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