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ELRCPartially AllowedCause stated as arising from Memorandum of Claim dated 1st February 2018 (number not stated in judgment; related Cause No. 105 of 2018 referenced)· [2025] KEELRC 2775 (KLR)

Mmbasu v Frodak Kenya Limited & another (Cause 113 of 2018) [2025] KEELRC 2775 (KLR)

Employment and Labour Relations Court
9 October 2025
2,526 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that firing a worker who joined an unprotected strike can be lawful, but employers must still pay earned leave.

What this practically means

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Executive summary

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The Claimant, employed as a loader from 28th April 2016 until 2nd May 2017, sued for a declaration that his termination was unlawful and for terminal dues totalling Kshs. 92,481.6. The 1st Respondent denied the employment relationship, asserting any dismissal arose from participation in an illegal strike; the 2nd Respondent appeared but filed no pleadings or submissions. The court held, on the strength of the 1st Respondent's own employment contracts and payroll listings, that the Claimant was the 1st Respondent's employee. On the termination, the court found there was an industrial unprotect strike on 2nd May 2017; under section 80 of the Labour Relations Act participation in an unprotected strike attracts disciplinary action, giving the employer a valid reason. Relying on its own decision in Simon v Frodak Services Limited, where mass terminations following a strike at the same premises made strict compliance with section 41 of the Employment Act impracticable, the court adopted that reasoning and held the Claimant had not proved unfair termination. On reliefs, all heads failed except accrued annual leave: notice pay had been received at the Labour office; piece-rate pay of Kshs. 17 per tonne was inclusive of house allowance and not amenable to overtime claims; compensation and the declaration fell away with the finding on unfairness; the public holiday claim lacked particulars; and NSSF membership defeated service pay. The court awarded 21 days' leave at 1.75 days per month under section 28(1) of the Employment Act, computed on the minimum daily wage for a loader (Kshs. 296.20 x 21 = Kshs. 6,220.2), ordered a certificate of service within 30 days, and awarded the Claimant costs against the 1st Respondent.

Key legal issues

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01

Identity of employer

Holding

The 1st Respondent was the Claimant's employer, established by its own documents (employment contracts and payroll listings).

Reasoning

Despite the 1st Respondent's denial of the employment relationship, its own filed documents — the Claimant's employment contracts and payroll cash listings — showed it had engaged the Claimant as a loader. The evidence of payment by a third party and work assignment arrangements did not displace the documented employment relationship with the 1st Respondent.

p. 4
02

Whether termination was unfair

Holding

There was a valid reason for termination (participation in an unprotected strike) and the Claimant failed to prove procedural unfairness in the prevailing circumstances.

Reasoning

Section 80 of the Labour Relations Act deems a participant in a non-compliant strike to have breached his contract and liable to disciplinary action. Following its own precedent in Simon v Frodak Services Limited, where over 300 employees were involved and workers' representatives walked out of meetings, strict compliance with section 41 was not realistically possible. The court adopted that reasoning and found the Claimant had not proved unfair termination.

p. 5
03

Entitlement to reliefs

Holding

Most prayers failed; only accrued annual leave (21 days, Kshs. 6,220.2) was awarded, plus a certificate of service.

Reasoning

Each prayer was assessed on the evidence: notice pay was covered by payment at the Labour office; house allowance was subsumed in piece-rate pay; no compensation flowed since termination was not unfair; the public holiday claim lacked particulars; service pay was barred by NSSF membership; overtime did not apply to tonnage-based pay. Only accrued leave was proved, as the 1st Respondent adduced no evidence of leave taken or paid.

p. 6

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 employment, but must nonetheless comply with section 41 of the Employment Act so far as practicable.
  • Piece-rate remuneration based on tonnage is not dependent on time worked and carries no entitlement to overtime, and such pay was inclusive of house allowance.
  • A claimant who worked a year without annual leave is entitled to leave at 1.75 days per month under section 28(1) of the Employment Act.

Court orders

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  1. 1.Judgment entered for the Claimant for accrued leave earned but not taken in the sum of Kshs. 6,220.2
  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
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Mmbasu v Frodak Kenya Limited & another (Cause 113 of 2018) [2025] KEELRC 2775 (KLR)", Case Analysis (2025). Cause stated as arising from Memorandum of Claim dated 1st February 2018 (number not stated in judgment; related Cause No. 105 of 2018 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2775/eng@2025-10-09

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