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ELRCPartially AllowedCause No E074 of 2021· [2025] KEELRC 1205 (KLR)

Kenya Chemical Workers Union v Silafrica Limited (Cause E074 of 2021) [2025] KEELRC 1205 (KLR)

Employment and Labour Relations Court
30 April 2025
CBC. N. Baari
3,585 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a baker was unfairly fired for helping calm a strike as his union representative, winning pay but not his job back.

What this practically means

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Executive summary

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The Claimant union, on behalf of grievant James Kirubi Mwangi, a machine attendant employed in 2002 and summarily dismissed on 16th November 2018, sought reinstatement or, in the alternative, Kshs. 922,687 in dues and benefits under the CBA. The Claimant alleged the dismissal was unprocedural and that the grievant, a shop floor steward, was dismissed after being asked by Human Resources Officer Desmond Asisi to help quell a strike by outsourced workers. The Respondent maintained the grievant spearheaded an illegal strike causing massive losses, justifying dismissal under Sections 43 and 44 of the Employment Act. The court framed two issues: whether the termination was unfair, and entitlement to reliefs. It held that a hearing before a holding suspension is not required, following the Kwale County Assembly Service Board v Dzila decision, and found procedural fairness was met since the grievant answered a show-cause letter and appeared before a disciplinary panel. On substance, however, the court found the Respondent failed to rebut the assertion that the grievant was asked to intervene in the strike; the Respondent's failure to call Asisi and the contradiction in its evidence amounted to double speak. Dismissing a shop steward for performing his representative role was held to be an unfair labour practice, rendering the dismissal unfair and unlawful. Reinstatement was refused, the dismissal being over six years old and no special circumstances proved. Ex-gratia and pro-rata leave were refused under the CBA. The court awarded notice pay, days worked, leave travelling allowance, annual leave, 14 years' gratuity and three months' compensation, with costs to the Claimant. Judgment delivered by C. N. Baari, J, in Nairobi on 30th April 2025.

Key legal issues

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01

Whether the grievant was unfairly terminated

Holding

The summary dismissal was procedurally fair but substantively unjustified; the Respondent failed to prove fair and valid reasons.

Reasoning

The court accepted that a hearing at suspension stage is unnecessary, and that the grievant responded to a show-cause letter and appeared before a disciplinary panel, satisfying Section 41. However, on substance, the grievant was a shop steward who, on the evidence of RW2, was requested to help quell a strike by outsourced workers. The Respondent did not rebut this assertion, did not call Desmond Asisi who was central to the events, and contradicted itself by denying Asisi's authority while he signed the dismissal letter. Dismissing the grievant for exercising his role as a workers' representative was an unfair labour practice and draconian.

p. 7
02

Whether reinstatement is available

Holding

Reinstatement refused as it was sought over six years after dismissal and no special circumstances were shown.

Reasoning

Section 12(3)(vii) of the ELRC Act limits reinstatement orders to dismissals within three years, and the Court of Appeal in Kenya Airways requires very special circumstances. The dismissal occurred on 16th November 2018, over six years before judgment, and no special circumstances were proved, so the prayer failed.

p. 7
03

Which alternative monetary reliefs are payable

Holding

All claimed dues awarded except ex-gratia and pro-rata leave, which are not available under the CBA.

Reasoning

The Respondent led no evidence to controvert the Claimant's claims. The court however examined the CBA and found ex-gratia payment is reserved for retiring employees and pro-rata leave is not provided for. It awarded notice pay, days worked, leave travelling allowance, 29 annual leave days, gratuity for 14 years and 3 months' compensation for unfair dismissal.

p. 8

Legal principles established

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  • A hearing before a holding suspension for investigations is not mandatory under the Employment Act; fairness is assessed post show-cause.
  • Dismissing a shop steward for intervening in a strike at the employer's behest is an unfair labour practice.
  • Reinstatement is tenable only within three years of dismissal and only in very special circumstances.

Court orders

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  1. 1.Prayer for reinstatement dismissed
  2. 2.Two months' notice awarded at Kshs. 76,660/-
  3. 3.Days worked awarded at Kshs. 23,588/-
  4. 4.Leave travelling allowance awarded at Kshs. 8,875/-
  5. 5.29 annual leave days awarded at Kshs. 42,752/-
  6. 6.Gratuity benefits for 14 years awarded at Kshs. 619,080/-
  7. 7.3 months compensation for unfair dismissal awarded at Kshs. 114,990/-
  8. 8.Costs borne by the Respondent

Authorities

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Legislation

  • Employment ActSections 41, 42(1), 43, 44, 45, 49(3)(a)
  • Labour Relations Act
  • Employment and Labour Relations Court ActSection 12(3)(vii)
  • Constitution of Kenya 2010Articles 25, 27, 35, 41, 47, 50
  • ILO Convention 135

Cases cited (6)

  • Galgalo Jarso Jillo v Agricultural Finance Corporation
  • Kwale County Assembly Service Board & 6 others v Dzila
    (Civil Appeal E102 of 2022) [2024] KECA 945 (KLR) (26 July 2024)
  • Anthony Mkala Chitavi v. Malindi Water & Sewerage Company Ltd
    [2013] eKLR
  • Seth Panyako v. Kenya Union of Domestic, Hotels, Educational Institutions, Hospitals and Alled Workers
    (2013) eKLR
  • British Leyland UK Ltd v Swift
    (1981) I.R.L.R 91
  • Kenya Airways Limited vs Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, Section 12

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 Chemical Workers Union v Silafrica Limited (Cause E074 of 2021) [2025] KEELRC 1205 (KLR)", Case Analysis (2025). Cause No E074 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1205/eng@2025-04-30

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