Ondicho v Frodak Kenya Limited & another (Cause 105 of 2018) [2025] KEELRC 2773 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Claimant was an employee of the 1st Respondent
The Claimant was an employee of the 1st Respondent
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.
Whether the Claimant's employment was unfairly terminated
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
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.
Whether the Claimant is entitled to the reliefs sought
Only accrued leave not taken was awarded, computed at 55 days based on the minimum daily wage for a loader
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.
Legal principles established
#- 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
#- 1.Judgment entered for the Claimant in the sum of Kshs. 24,880.8 being accrued leave earned but not taken
- 2.The 1st Respondent directed to issue the Claimant with a certificate of service within 30 days
- 3.The 1st Respondent to meet the Claimant's costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act and Labour Relations Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.