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ELRCPartially AllowedEmployment Appeal (Gatundu Employment Cause No. E006 of 2021)· [2025] KEELRC 1021 (KLR)

Keya v Everflora Limited (Employment and Labour Relations Appeal E050 of 2023) [2025] KEELRC 1021 (KLR)

Employment and Labour Relations Court
28 March 2025
6,326 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court upheld a worker's dismissal for joining an illegal strike but awarded her unpaid house allowance proven by her payslip.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Honourable Wangeci Ngumi (SPM) delivered at Gatundu on 13th March 2023 in Gatundu Employment Cause No. E006 of 2021, dismissing a claimant's claim for notice pay, 12 months' compensation for unfair termination, house allowance and public holiday pay following her summary dismissal. The appellant, a grading-staff puncher at a flower company, was dismissed for allegedly leading an illegal strike after refusing an increased target of 225 bunches without additional pay. On appeal, the court applied the Selle v Associated Motor Boat Co. Ltd principles requiring re-evaluation of the evidence. It framed two issues: the lawfulness and fairness of the termination and the reliefs. It held that the reason for termination (participation in an illegal strike) was valid and pleaded through the parties' witness statements, that the appellant's concerted refusal of extra work fitted the statutory definition of a strike, and that section 80 of the Labour Relations Act was correctly applied, making the dismissal lawful and fair procedurally and substantively. However, on reliefs, the court found the house allowance claim proved through the undisputed payslip (a statutory document showing no house allowance), holding it a continuing injury under section 89 of the Employment Act, and allowed it as prayed. The public holidays claim failed as it was not pleaded in the witness statement adopted as evidence in chief. The appeal was partially successful: the trial judgment was set aside and substituted with a declaration that the termination was lawful and fair, an award of house allowance of Kshs. 14,304.60 with costs and interest at court rate from the date of filing, and costs of the appeal to the appellant.

Key legal issues

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01

Whether the termination was substantively and procedurally fair, and whether the illegal strike defence was pleaded

Holding

The termination was substantively and procedurally fair. The illegal strike was pleaded through the witness statements of both parties, was the known reason for dismissal, and the appellant's conduct with co-workers amounted to a strike as defined in the Employment Act; section 80 of the Labour Relations Act was correctly applied.

Reasoning

The employer proved the reason for termination under section 43 of the Employment Act: participation in an illegal strike. The appellant and CW2 admitted refusing extra work and spoke in plural terms ('we were protesting'), evidencing concerted cessation of work amounting to a strike. The issue was pleaded in witness statements and explored in cross-examination, so no surprise or denial of justice arose. Procedurally, the appellant met the Human Resources and was heard before dismissal.

p. 10
02

Whether the appellant proved the claims for house allowance and public holidays

Holding

The house allowance claim succeeded because the undisputed payslip showed no house allowance item and the respondent did not plead that it provided housing; the public holidays claim failed as it was not pleaded or proven.

Reasoning

Under section 31 of the Employment Act the employer must provide housing or pay a sufficient sum as rent. The payslip, a statutory document under section 20 of the Employment Act, was conclusive evidence that house allowance was not paid, and the defence was silent on housing. The claim was a continuing injury under section 89 and filed within time. In contrast, the public holidays claim was omitted from the witness statement adopted as evidence in chief and was therefore unproven.

p. 12
03

Whether reliance on unpleaded facts (illegal strike) and section 80 of the Labour Relations Act vitiated the trial judgment

Holding

No. The issue of illegal strike was sufficiently raised in the parties' witness statements and denial in the defence, and a party is not required to plead specific provisions of the law.

Reasoning

The respondent's witness statement of Moses Ndeda Azere pleaded that the claimant was dismissed for participating in an unlawful strike, and the claimant's own witness statement raised the illegal strike allegation which she denied. The parties were thus bound by pleadings in substance. The court found the ground that the strike issue was not pleaded to be untrue, and the application of section 80 of the Labour Relations Act appropriate.

p. 10

Legal principles established

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  • A first appellate court is obliged to re-evaluate the evidence before the trial court and draw its own conclusions, though making due allowance for not having seen or heard the witnesses.
  • Parties are bound by their pleadings and a court cannot adjudicate on matters not raised by the pleadings.
  • An employee's refusal of extra work in combination with co-workers fits the statutory definition of a strike, and participation in a non-compliant strike exposes the employee to disciplinary action including summary dismissal under section 80 of the Labour Relations Act.
  • An itemised payslip is a statutory document and is conclusive evidence of the salary paid, requiring no other evidence where house allowance is not provided for.

Court orders

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  1. 1.The termination is held as lawful and fair
  2. 2.House allowance Kshs. 14,304.60 awarded to the claimant against the respondent
  3. 3.Costs and interest at court rate from the date of filing of the suit on the house allowance claim
  4. 4.The appellant is awarded costs of the appeal
  5. 5.The judgment of the Honourable Wangeci Ngumi (SPM) dated 13th March 2023 is set aside and substituted accordingly

Authorities

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Legislation

  • Employment Act, 2007Section 45(2)
  • Employment Act, 2007Section 41
  • Employment Act, 2007Section 43
  • Employment Act, 2007Section 44(4)(e)
  • Employment Act, 2007Section 31
  • Employment Act, 2007Section 20
  • Employment Act, 2007Section 89
  • Employment Act, 2007Definition of 'strike'
  • Labour Relations Act, 2007Section 80
  • Labour Relations Act, 2007Sections 76 and 78

Cases cited (5)

  • Selle v Associated Motor Boat Co. Ltd
    [1968] EA 123
  • Mbogo v Shah
    [1968] EA (at p. 94, per De Lestang V.P)
  • Dakianga Distributors (K) v Kenya Seed Company Limited
    (2005) eKLR
  • Malawi Railways Limited v Nyasulu
    [1998] MWSC 3
  • Joash Alubale Jacob v Mega Pack Limited
    (2019) eKLR
On appeal from
Chief Magistrate's Court at Gatundu (Employment and Labour Relations)
Gatundu Employment Cause No. E006 of 2021
Jurisdiction invoked
First appellate jurisdiction over the subordinate court's judgment in an employment cause

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, "Keya v Everflora Limited (Employment and Labour Relations Appeal E050 of 2023) [2025] KEELRC 1021 (KLR)", Case Analysis (2025). Employment Appeal (Gatundu Employment Cause No. E006 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1021/eng@2025-03-28

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