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ELRCPartially AllowedEmployment and Labour Relations Court Claim dated 5th February 2018· [2025] KEELRC 2773 (KLR)

Ondicho v Frodak Kenya Limited & another (Cause 105 of 2018) [2025] KEELRC 2773 (KLR)

Employment and Labour Relations Court
9 October 2025
2,714 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a mass dismissal over an unprotected strike but still awarded the worker accrued leave pay and a certificate of service.

What this practically means

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Executive summary

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The Claimant sued the 1st Respondent seeking a declaration that his termination on 2nd May 2017 was unlawful, together with terminal benefits totalling Kshs. 223,021.9, alleging unfair termination without notice, hearing, leave pay, overtime and house allowance. The 1st Respondent denied the claim, asserting the Claimant was dismissed for participating in an illegal strike, while the 2nd Respondent entered appearance but filed no pleadings. The court framed three issues: identity of the employer, whether termination was unfair, and entitlement to reliefs. On the first issue, the court found on the Respondent's own documents and the evidence of RW1 that the Claimant was an employee of the 1st Respondent. On the second, the court took judicial notice of the industrial action of 2nd May 2017, and relying on section 80 of the Labour Relations Act and a strike report by the County Labour Officer, found the strike unprotected, giving the employer a valid reason for termination. Adopting its own reasoning in Simon v Frodak Services Limited, the court held that with over 300 employees terminated, strict compliance with section 41 of the Employment Act was not realistically possible, and the Claimant failed to prove unfair termination. On reliefs, most heads were declined: notice pay (already paid), compensation (termination lawful), house allowance and overtime (piece-rate pay), service pay (NSSF membership), public holiday pay and pro-rata leave (lack of particulars). However, the court awarded accrued leave not taken, computing 55 days' leave at the minimum daily wage for a loader, totalling Kshs. 24,880.8. Judgment was entered for the Claimant on that head, with an order for a certificate of service within 30 days and costs against the 1st Respondent.

Key legal issues

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01

Whether the Claimant was an employee of the 1st Respondent

Holding

The Claimant was an employee of the 1st Respondent

Reasoning

Although the 1st Respondent initially denied employing the Claimant, its Operations Manager (RW1) confirmed the engagement, and the Respondent's own list of documents contained the employment contracts and payroll listings showing the Claimant was engaged as a loader by the 1st Respondent.

p. 4
02

Whether the Claimant's employment was unfairly terminated

Holding

Termination was not unfair; the Claimant participated in an unprotected strike and the employer had a valid reason, and in the mass-termination circumstances strict compliance with section 41 was not possible

Reasoning

The court took judicial notice of the industrial action on 2nd May 2017 and, relying on section 80 of the Labour Relations Act and a strike report by the County Labour Officer, found the strike unprotected, giving the employer a valid reason. Adopting Simon v Frodak Services Limited, the court held that with over 300 employees involved, strict compliance with section 41 could not be expected.

p. 6
03

Whether the Claimant is entitled to the reliefs sought

Holding

Only accrued leave not taken was awarded, computed at 55 days based on the minimum daily wage for a loader

Reasoning

Most prayers failed because the termination was lawful, the Claimant was paid at termination, piece-rate pay covered house allowance and excluded overtime, NSSF membership defeated service pay, and several claims lacked particulars. Leave was proved by the Respondent's failure to show leave was taken or paid for.

p. 7

Legal principles established

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  • An employee who participates in an unprotected strike is liable to disciplinary action and the employer has a valid reason to terminate such employment
  • Even where there is valid reason for termination, an employer remains obliged to comply with section 41 of the Employment Act, though practical impossibility of strict compliance with mass terminations is a relevant consideration

Court orders

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  1. 1.Judgment entered for the Claimant in the sum of Kshs. 24,880.8 being accrued leave earned but not taken
  2. 2.The 1st Respondent directed to issue the Claimant with a certificate of service within 30 days
  3. 3.The 1st Respondent to meet the Claimant's costs of the suit

Authorities

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Legislation

  • Employment Actsection 41
  • Employment Actsection 28(1)
  • Labour Relations Actsection 80
  • Labour Relations Actsections 76 to 79

Cases cited (6)

  • Postal Corporation of Kenya vs Andrew K. Tanui (2019) eKLR
    (2019) eKLR
  • Garama Karisa Masha vs Krystalline Salt Limited (2016) KEELRC 535 (KLR)
    (2016) KEELRC 535 (KLR)
  • Krystalline Salt Limited vs Kwekwe Mwakele & 67 Others (2017)
    (2017)
  • Registered Trustees of the Presbyterian Church of East Africa & Another vs Ruth Gathoni Ngotho Kariuki (2017) KECA 194 (KLR)
    (2017) KECA 194 (KLR)
  • Mikis & 55 Others vs Frodak Services (Frodak Kenya Limited & Another (2024) KEELRC 2765 (KLR)
    (2024) KEELRC 2765 (KLR)
  • Simon v Frodak Services Limited [2025] KEELRC 1288 (KLR)
    [2025] KEELRC 1288 (KLR)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act

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, "Ondicho v Frodak Kenya Limited & another (Cause 105 of 2018) [2025] KEELRC 2773 (KLR)", Case Analysis (2025). Employment and Labour Relations Court Claim dated 5th February 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2773/eng@2025-10-09

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