Mwadori v Milly Glass Works Limited (Appeal E035 of 2025) [2025] KEELRC 2312 (KLR)
The bottom line
#Kenya's Employment Court confirmed that unionised employees relying on a CBA must file trade disputes in the ELRC, not magistrates' courts, and lost their appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned magistrate erred in declining jurisdiction on the ground that the appellant's claim was founded on a CBA and was a trade dispute
- 2.Whether the trial court's finding on jurisdiction should be disturbed on first appeal
- 3.Whether the summary dismissal of the appellant was justified
- 4.Whether the claims for notice pay, compensation, gratuity, balance of contract term and leave travelling allowance were merited
Key legal issues
#Jurisdiction of the magistrates' court over claims founded on a CBA by a unionised employee
The trial court lacked jurisdiction; the claim based on CBA terms by a unionised employee constituted a trade dispute reserved for the ELRC.
The appellant was unionised, as shown by check-off remittances to the Kenya Chemical Workers Union in the March 2021 payment statement, and his claims (gratuity and leave travelling allowance) were founded on CBA clauses 23 and 12[b]. Such a dispute falls within the statutory definition of a trade dispute under the Labour Relations Act and is excluded from the magistrates' delegated jurisdiction under Legal Notice No. 6024 of 2018.
Justification of summary dismissal under section 44 of the Employment Act
The termination was justified as gross misconduct, the appellant having been heard and having failed to give a satisfactory explanation.
Two bottles of 750 Kvint were found with mud in a packed pallet awaiting dispatch, following prior complaints from the customer Mega Beverages Tanzania. The appellant was suspended, invited to a disciplinary hearing, and terminated under section 44para 4[c] of the Employment Act. He did not challenge the grounds in his evidence, only alleging victimisation for union membership, which the record did not support.
Legal principles established
#- Legal Notice No. 6024 of 2018 conferred jurisdiction on magistrates' courts over employment disputes only, excluding trade disputes, over which the ELRC retains original jurisdiction.
- A dispute between a unionised employee and an employer arising out of the employment relationship is a trade dispute rather than an employment claim.
- Summary dismissal is justified where an employee is guilty of gross misconduct and, having been invited to make representations, fails to provide a satisfactory explanation.
Court orders
#- 1.The appeal is without merit and is hereby dismissed
- 2.Each party to bear its costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (CMELRC), Mombasa
- Mombasa CMELRC No. 603 of 2023
- Jurisdiction invoked
- Appeal from the magistrates' court exercising jurisdiction conferred by Legal Notice No. 6024 of 2018 under the Industrial Court Act (as repealed) and the Magistrates' Court Act
Relief refused
#Setting aside the trial court's judgment and allowing the claim
The trial court had no jurisdiction over the claim since it was a trade dispute based on CBA terms; the magistrate correctly put down her tools
Reconsideration of the claim on its merits by the appellate court
Hearing the matter afresh on appeal would deny the respondent a fair chance at a hearing before the appropriate court
Notice pay and 12 months' compensation
Summary dismissal for gross misconduct was justified; notice pay or compensation not available
Gratuity and balance of contract period
Employment was lawfully terminated and under the CBA gratuity is not payable on summary dismissal
Leave travelling allowance for 5 years
Payment was conditional under clause 12[b] of the CBA and the appellant did not justify the claim
Costs
Each party to bear its costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Accordingly, the appeal is without merit and is hereby dismissed. The respondent did not file any submissions as directed. Each party to bear its costs.
The appellant’s claim, based on the CBA terms and conditions, being unionised, the trial court had no jurisdiction. It was proper to put down its tools at that instance.
Any dispute arising out of the employment relationship between the appellant and the respondent, being unionised under the Kenya Chemical Workers Union, becomes a trade dispute rather than an employment claim.
The conduct of the appellant was thus defined as gross misconduct. The resulting termination of employment was justified.
Issues in the judgment
#Gender of the appellant is described inconsistently - the quoted trial judgment refers to the claimant as 'she' while the appellate judgment refers to the appellant as 'he'
The case number of the present appeal is not expressly stated; only the trial court number (Mombasa CMELRC No. 603 of 2023) is given
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwadori v Milly Glass Works Limited (Appeal E035 of 2025) [2025] KEELRC 2312 (KLR)", Case Analysis (2025). ELRC Appeal (Mombasa) arising from Mombasa CMELRC No. 603 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2312/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.