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ELRCPartially AllowedCause No E348 of 2023· [2025] KEELRC 2497 (KLR)

Kenya Petroleum Workers Union v Proto Energy Limited (Cause E348 of 2023) [2025] KEELRC 2497 (KLR)

Employment and Labour Relations Court
19 September 2025
4,951 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 ruled an employer's anonymous letter wasn't enough to justify firing a worker, awarding him over Kshs 214,000.

What this practically means

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Executive summary

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The Claimant Union sued on behalf of its member, Anthony Hamisi, a Machine Operator whose employment the Respondent terminated on 5th July 2021 after a disciplinary process over an alleged unlawful incitement, unprotected strike and failure to report an impending risk to production. The Claimant sought notice pay, unpaid house allowance, compensation for unfair termination, reversal of a salary deduction for absenteeism, a Certificate of Service, costs and interest. The Respondent denied liability, asserting valid grounds and fair procedure, and challenged the Claimant's locus standi on the ground that the Grievant belonged to a different union during employment. The Court framed four issues: locus standi, validity of reasons, procedural fairness and reliefs. It held the Claimant had locus under Rule 63(1) of the ELRC (Procedure) Rules, 2024, since membership at the time of filing sufficed. On substance, the only support for the allegations was an undated anonymous letter that did not mention incitement or strike; the Respondent proved no investigation and failed to discharge its burden under Sections 43(1) and 45(2) of the Employment Act. Procedurally, the under-24-hour notice was inadequate, the promised appeal was never considered despite the Respondent's pleadings, and no Certificate of Service was issued. Judgment was entered for the Grievant: a declaration of unfair and unlawful termination, compensatory damages of Kshs 189,000.00 (seven months' gross salary), Kshs 25,742.00 for the unlawful deduction, a total of Kshs 214,742.00 with interest, costs against the Respondent, and an order to issue a Certificate of Service within 14 days. Claims for notice pay, overtime and house allowance were declined.

Key legal issues

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01

Locus standi of the Claimant Union

Holding

The Claimant Union had locus standi because the Grievant was its member at the time of filing suit, per Rule 63(1) of the ELRC (Procedure) Rules, 2024

Reasoning

The Grievant's membership card showed he joined the Claimant Union on 4th July 2021, before his termination on 5th July 2021, and no evidence discounted continued membership. Rule 63(1) permits trade unions to represent members in suits. His prior membership of a different union (KEWU) during employment was held to be irrelevant to locus at filing.

p. 7
02

Fair and valid reason for termination

Holding

The Respondent failed to prove valid reasons; the termination was not for a fair and valid reason

Reasoning

Under Sections 43(1) and 45(2)(a) and (b) of the Employment Act, the employer had to prove reasons related to the Grievant's conduct. The only basis was an undated anonymous letter alleging illegal union recruitment, which said nothing about incitement, go-slow or strike. No investigations were alluded to, and the allegations were unsupported by any evidence.

p. 8
03

Procedural fairness

Holding

The procedure was unfair: the notice to show cause period was under 24 hours, the appeal was ignored, and no Certificate of Service was issued

Reasoning

Section 45(2)(c) and 41(1) of the Employment Act require adequate notice and an opportunity to be defended. The Court of Appeal in Nebert Mandala Ombapa v ICPAK was cited on the need for sufficient time. The Grievant had less than 24 hours to respond, the Respondent failed to consider his appeal despite pleading it had, and Section 51 obligations on a Certificate of Service were unmet.

p. 8
04

Reliefs

Holding

Seven months' gross salary as compensation plus the unlawfully deducted Kshs 25,742; notice pay, overtime and house allowance claims declined

Reasoning

Having found both substantive and procedural unfairness, the Court exercised its discretion under Section 49 to award seven months' salary. The absenteeism deduction was unproven. Notice pay was already paid, overtime appeared on the payslip, and the consolidated salary covered house allowance.

p. 9

Legal principles established

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  • A trade union has locus standi to sue on behalf of a member provided membership subsists at the time of filing suit, irrespective of the union the employee belonged to during employment
  • The employer bears the evidential burden of proving fair and valid reasons for termination under Sections 43(1) and 45(2) of the Employment Act, and mere suspicion or an anonymous letter will not suffice
  • An employer who notifies an employee of a right of appeal must consider the appeal; failure to do so renders the termination procedurally unfair under Section 45(5)(a) of the Employment Act

Court orders

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  1. 1.A declaration that the termination of the Grievant's employment was unfair and unlawful
  2. 2.Compensatory damages of Kshs 189,000.00 equivalent to seven (7) months of the Grievant's last gross salary
  3. 3.Kshs 25,742.00 for the deduction effected from the Grievant's salary as per his July 2021 payslip
  4. 4.Total award of Kshs 214,742.00 with interest at court rates from the date of Judgment until payment in full
  5. 5.The Respondent to bear the costs of the suit
  6. 6.The Respondent to issue the Grievant with a Certificate of Service within 14 days from the date of Judgment

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) RulesRule 63(1)
  • Employment ActSection 43(1)
  • Employment ActSection 45(2)(a) and (b)
  • Employment ActSection 45(2)(c)
  • Employment ActSection 45(5)(a)
  • Employment ActSection 41(1)
  • Employment ActSection 49
  • Employment ActSection 51
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B

Cases cited (5)

  • Modern Soap Factory v Kenya Shoe Leather Workers Union
    (2020) KECA 4 (KLR)
  • Robert Chaka Ndupha v Crown Bus Services
    (2017) KEELRC 1154 (KLR)
  • Joash Alubale Jacob v Mega Pack Limited
    (2019) KEELRC 1770 (KLR)
  • David Sirenge Kiganane v Mega Pack Limited
    (2019) KEHC 2384 (KLR)
  • Nebert Mandala Ombajo vs Institute of Certified Public Accountants of Kenya (ICPAK)
    Nakuru Civil Appeal No. 62 of 2018
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and the Employment and Labour Relations Court (Procedure) Rules, 2024 (Rule 63(1))

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 Petroleum Workers Union v Proto Energy Limited (Cause E348 of 2023) [2025] KEELRC 2497 (KLR)", Case Analysis (2025). Cause No E348 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2497/eng@2025-09-19

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