Kenya Union of Commercial, Food and Allied Workers v Sunmatt Ltd (Employment and Labour Relations Cause 1360 of 2018) [2025] KEELRC 151 (KLR)
The bottom line
#Kenya's Employment Court ruled that without written contracts, employers bear the burden of proving employment terms, costing one employer over Ksh 1.4 million.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2017 CBA applied to the Grievants
Yes. Although the CBA was signed on 27th July 2017 and registered on 30th October 2017, its effective date was backdated to 1st April 2016, covering the period when both Grievants were in employment
Clause 34 of the CBA expressly provided it was effective from 1st April 2016. The 1st Grievant resigned on 26th August 2017 and the 2nd on 22nd November 2017, both after the CBA came into force. Registration after resignation does not defeat entitlement because the effective date was backdated. The court also found the 2nd Grievant was not management, having exited as Computer Clerk/Shop Assistant, and was a member of the Claimant Union.
Whether the 2nd Grievant was a management employee excluded from the CBA
No. She exited employment as Computer Clerk/Shop Assistant, not Procurement Officer; the Respondent failed to produce a written contract and bore the burden under section 10(7)
The parties never reduced the employment relationship into writing as required by sections 9 and 10 of the Employment Act. Under section 10(7), the burden fell on the Respondent to prove the contested position. The Respondent's own clearance form and pay slips described her as Computer Clerk/Shop Assistant, and the business card and air ticket did not evidence a Procurement Officer role.
Whether the 2nd Grievant was a member of the Claimant Union despite absence from the check-off form
Yes. Section 52 of the Labour Relations Act permits direct payment of union dues; the membership card showed she was member number 4401
The Respondent argued that absence from the check-off form meant she was not a member. The court held that direct remittance of dues is lawful and the membership card produced by the Claimant proved membership on a balance of probabilities.
Whether the 2nd Grievant was entitled to house allowance
Yes. There was no written contract consolidating house allowance with basic salary; she was awarded 15% of basic pay from November 2014 to January 2018
Under section 31(2)(a) of the Employment Act, consolidation requires an express contractual provision. No written contract existed, and pay slips cannot substitute for a contract per the Grain Pro decision. The court awarded Ksh. 11,250.00 monthly for 38 months.
Legal principles established
#- Where the employer fails to reduce an employment contract into writing as required by sections 9 and 10 of the Employment Act, and a dispute arises over contract particulars, the burden of proving the contested matter rests on the employer under section 10(7)
- A trade union member need not appear on a check-off form to be a member; direct remittance of dues is permitted under section 52 of the Labour Relations Act
- A pay slip is not a contract of service and cannot authoritatively establish the terms of engagement between the parties
- House allowance may only be consolidated with basic salary where the contract contains an express consolidation clause under section 31(2)(a) of the Employment Act; absent such provision, house allowance is fixed at 15% of basic pay
Court orders
#- 1.Declaration that the 2017 CBA applied to the Grievants and their benefits ought to have been worked out based on it
- 2.Award to the 1st Grievant, Yustino Abala, of Ksh. 3,824.00 salary arrears and Ksh. 120,748.80 gratuity, less notice pay of Ksh. 35,294.00, total Ksh. 89,278.80
- 3.Award to the 2nd Grievant, Judy Nyawira Murage, of Ksh. 427,500.00 house allowance and Ksh. 945,000.00 gratuity, total Ksh. 1,372,500.00
- 4.Claims for salary arrears (2nd Grievant) and pay for days worked declined
- 5.Claimant not entitled to costs under the Advocates Remuneration Order but permitted to recover actual expenditure incurred in prosecuting the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Act (referenced through ELRC Cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Commercial, Food and Allied Workers v Sunmatt Ltd (Employment and Labour Relations Cause 1360 of 2018) [2025] KEELRC 151 (KLR)", Case Analysis (2025). ELRC Cause No 1360 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/151/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.