Kenya Concrete, Structural, Ceramic Tiles, Wood Plys and Interior Design Workers Union v China State Construction Corp. Limited

1. The Claimant is a trade union registered to represent workers in the construction sections and it brought this suit on behalf of its members Mr. Ekure Midong, Charles Kirui, Oliver Edapal Lokholome, Fredrick Omondi Onyango, Mark Emase, Lowos Emeri and Elipan Ekai Jackson (herein after called the grievants). 2. The Respondent is a limited liability company duly registered in Kenya, and at all material times the grievants were its employees. 3. By a statement of claim dated 21 st April 2022 the Claimant sued the Respondent alleging that it terminated the grievants services on account of redundancy and failed to pay their final dues as per the law. It further averred that the said termination was unfair because it was intended to frustrate the grievant’s right to association and the unions right to recognition after recruiting members from the Respondent’s workforce. 4. The Claimant referred the matter to the minister for labour for conciliation and on 28th March 2022, the conciliator made his report. In the report the Respondent was found to have violated the law and was asked to pay terminal dues to the grievants. JUDGMENT IN ELRC CAUSE NO. E247 OF 2022. 2

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The Claimant prays for the findings and recommendations by the conciliator to be adopted by the court. 5. The Respondent admitted that it employed all the grievants and averred that Charles Kirui’s contract lapsed and voluntarily refused to renewal. Midong Arii was dismissed after a disciplinary process while the rest of the grievants contracts expired and they were not renewed. That Elipan Ekkai Jackson and Fredrick Omondi Onyango accepted and signed for their terminal dues but Lowos Emeri, Oliver Edapal Lokhotome and Mark Emase declined their terminal dues. 6. The Respondent then computed the amounts payable to the grievants as follows:a) Charles Kirui Ikaru = Kshs. 75,547.62 b) Elipan Ekai Jackson = Kshs. 128,182.89 c) Fredrick Omondi Onyango = Kshs. 88,527.26 d) Lowas Emeri = Kshs. 105,403.54 e) Oliver Edapal Lokholome Kshs. 44,667.54 f) Mark Emase = Kshs. 110,855.78 Evidence JUDGMENT IN ELRC CAUSE NO. E247 OF 2022. 3

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7. The hearing was done on 4th May 2026 when the Claimant called Mark Lowa Emase (5th grievant’s) to testify on behalf of the other grievants but the Respondent did not call any witness. Mr. Emase testified as CW1 and adopted his written statement dated 26th January 2025 as evidence in chief and produced 6 documents as exhibits. 8. In brief, his evidence was that all the grievants herein were employed by the Respondent on diverse dates and in different capacity as per the schedule marked DAM in the Claimants bundle. They all joined the Claimant union by signing Check Off Forms on 16th September 2021 and despite their diligent service they were unfairly and unlawfully dismissed and terminated on account of redundancies. 9. He contended that the said unlawful actions amounted to victimization for joining the union. They were also not subjected to fair procedure before the dismissal or redundancy as they were not accorded hearing or paid dues. 10. The intervention by the union did not bear any fruit and it reported the matter to the Ministry of Labour. A conciliator’s report was given in their favour but the Respondent declined to honour the same which amounted to breach of Article 159 of JUDGMENT IN ELRC CAUSE NO. E247 OF 2022. 4

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the Constitution which encourages alternative dispute resolution mechanism. He prayed for judgment as per the conciliators report marked DAM 5. Submissions and issues for determination 11. After the hearing, only the Claimant who filed submissions. Having considered the pleadings, evidence and submissions, there is no doubt that the grievants were employees of the Respondent at all material times to this suit. The issues for determination are:a) Whether the grievant’s employments contract were unfairly/unlawfully terminated by the Respondent. b) Whether the Claimant is entitled to the reliefs sought. Unfair/unlawful termination 12. Section 45 (2) of the Employment Act provides that:"(2) A termination of employment by an employer is unfair if the employer fails to prove: (a) that the reason for the termination is valid; (b) that the reason for the termination is a fair reason… JUDGMENT IN ELRC CAUSE NO. E247 OF 2022. 5

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(i) related to the employee's conduct, capacity or compatibility; or (ii) based on the operational requirements of the employer; and (c) that the employment was terminated in accordance with fair procedure." 13. In this case the Claimant alleged that the Respondent unfairly terminated the grievants employment on account of redundancy. On the other hand, the Respondent denied that allegation and contended that the grievants contracts either lapsed automatically due to effluxion of time or the grievant voluntarily left employment or he was dismissed for damaging a machine. 14. As provided in Section 45 (2) above, the employer bears the burden of proving that termination was grounded on valid reason and that fair procedure was followed. The Respondent herein never called any witness to give evidence in support of its defence. The defence essentially confirmed that the grievants were entitled to payment of terminal dues including unpaid salary, leave, severance pay and salary in lieu of notice. JUDGMENT IN ELRC CAUSE NO. E247 OF 2022. 6

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15. The dispute had been referred to conciliation at the Labour Office and a report was prepared. Both parties subjected themselves to the process and after the report was produced, the Respondent did not challenge it even during the hearing of the suit when the Claimant urged the court to adopt it as a judgment. The court notes that during the conciliation proceedings, the Respondent admitted the claim by all the grievants except for two. It averred that Ekure Midiong Arii, was summarily dismissed for an offence while Charles Kirui was still attending work whenever there was a vehicle to drive. 16. In view of the unchallenged conciliators report, I proceed to adopt it on the issue of unfair termination and hold that the Claimant has proved on a balance of probability that the Respondent unfairly terminated the grievant’s employment. Ekure Midong was summarily dismissed without following fair procedure while the rest were laid off without following the due process for redundancy. Reliefs JUDGMENT IN ELRC CAUSE NO. E247 OF 2022. 7

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17. The Claimant prayed that the award recommended by the conciliator in the report dated 28 th March 2022 be adopted. Article 159 of the Constitution requires this court to encourage ADR and I believe conciliation needs to be encouraged in Labour disputes. 18. Having said that, I must also observe that the Report of the Conciliator dated 28th March 2022 is not capable of adoption as proposed by the Claimant. 19. To begin with the order of reinstatement has not been shown to be practicable considering that termination occurred four years ago. Secondly, the six months compensation seems unjustified considering the lack of evidence of long service. From the record, the grievants served for only one year under fixed term contracts. 20. Secondly, the Claimants pleadings just as the Respondent’s are poorly drafted making it difficult for the court to compute any awards. Without pleading monthly salary for each grievant makes it impossible for the court to compute the monetary awards sought. Parties are bound by their pleadings and where the court is unable to compute the damages sought the same should be declined. JUDGMENT IN ELRC CAUSE NO. E247 OF 2022. 8

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21. The Claimant also never pleaded particulars of the claims but merely prayed for the court to adopt the Report by the conciliator. The said report never made any specific figures and therefore it was upon the Claimant to plead the particulars of salary in lieu of notice, accrued leave, underpayment of severance pay and the compensation for unfair termination. 22. Since the Claimant never pleaded the said particulars it should not expect the court to manufacture the same from no where. Luckily, the Respondent has admitted some claims in its defence dated 5th May 2022 and that is what I will award. In paragraph 6 of the Response, the Respondent calculated the terminal dues owing in respect of the following three grievants:a) Lowos Emeri One month salary in lieu of notice…………Kshs. 32,955 Severance pay 16 days………………………Kshs. 21,632 Less statutory deductions……………………Kshs. 9,919.46 Net payable……………………………………Kshs. 44,667.54 b) Oliver Edapal Lokholome One month salary in lieu of notice…………Kshs. 32,955 JUDGMENT IN ELRC CAUSE NO. E247 OF 2022. 9

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16 days Severance pay..…………………….Kshs. 21,632 Less statutory deductions……………………Kshs. 9,919.46 Net payable……………………………………Kshs. 44,667.54 c) Mark Emase One month salary in lieu of notice…………Kshs. 29,250 16 days Severance pay..…………………….Kshs. 19,200 Less statutory deductions……………………Kshs. 7,993.36 Net payable……………………………………Kshs. 40,456.64 23. The rest of the claims that were not admitted lacked particulars and evidence to support and they are hereby declined. 24. In conclusion, I have found that the Respondent unfairly terminated the grievant’s employment contracts. I have further found that the Claimant did not specifically plead and prove the monetary claims sought and as such I have awarded only what was expressly admitted by the Respondent in paragraph 6 of its Memorandum of Response. Accordingly, I enter judgment for the Claimant against the Respondent as follows:a) A declaration that the termination of the grievants employment was unfair. b) Payment of the following:i. Lowos Emeri ………………….Kshs44,667.54 JUDGMENT IN ELRC CAUSE NO. E247 OF 2022. 10

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25. ii. Oliver Edapal Lokholome…..Kshs. 44,667.54 iii. Mark Emase …………………..Kshs. 40,456.64 iv. Interest at court rates from the date of Judgment. Since the suit has only succeeded to a small extent, each side will bear its own costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 29TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE Appearance: Angoya for Claimant No appearance for Respondent JUDGMENT IN ELRC CAUSE NO. E247 OF 2022. 11

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