Timsales Limited v Kenya Building, Construction, Timber & Furniture Industries Employees’ Union
The bottom line
#Kenya's Court of Appeal threw out a multi-million shilling award against Timsales because the union's claim was defectively pleaded and a judge wrongly delegated calculations to a labour officer.
What this practically means
#Executive summary
#Key legal issues
#Whether the grievants participated in an unprotected strike and whether the appellant had a valid reason for disciplinary action
The grievants engaged in an unlawful unprotected strike; Onyango J's unappealed finding to that effect bound Wasilwa J, who could not overturn it by distinguishing shifts. The appellant therefore had a valid reason to subject the grievants to disciplinary proceedings.
The statutory definition of a strike and sections 75, 76 and 80(1) of the LRA show that participation in a strike that does not comply with the Act breaches the employment contract and justifies disciplinary action. Onyango J had found the strike unprotected and illegal, and that ruling was never appealed, reviewed or set aside. A judge of concurrent jurisdiction cannot overturn another's decision; Wasilwa J's shift-by-shift analysis amounted to sitting on appeal over a coordinate decision and was a grave error.
Whether the trial judge abdicated her judicial function by directing the labour officer to compute figures post-judgment
Yes. The judge failed to determine contested issues of law and fact (duplicated names, deceased claimants, incomplete wage details) before remitting computation, thereby delegating a judicial function.
Rule 9(3) of the ELRC (Procedure) Rules mandatorily requires a schedule of claimants and details of wages due. The Statements of Claim omitted these details, duplicated names and included deceased claimants. Resolving the competence of claims by deceased claimants and the completeness of wage particulars are issues of law and fact for the trial court alone. Referring the calculation to the labour officer on unpleaded figures and a contested list was a grave misdirection, since making findings on disputed issues is a judicial function.
Whether the special damages awarded were pleaded and proved
No. The claims were not specifically pleaded and the award could not stand.
Pleadings define and delimit the matters in controversy and alert the opposite party to the case to be met. The Statements of Claim did not plead figures as required by Rule 9(3); some gross-pay columns were left blank. Such fatal defects could not be cured post-judgment by reference to the labour office. Because the claim was not sustainable as filed, the Court found it unnecessary to address procedural fairness of the dismissals, the appeal being disposed of on the two grounds already addressed.
Legal principles established
#- A judge of equal and concurrent jurisdiction cannot overturn, review or sit on appeal against the decision of another judge of concurrent jurisdiction; only an appellate court may set it aside.
- Participation by an employee in an unprotected strike is a breach of the employment contract and constitutes a valid and fair reason for disciplinary action or dismissal under section 80(1) of the Labour Relations Act.
- Determining contested issues of fact and law is a judicial function that a trial court cannot delegate to a labour officer; a court may only remit computation after it has itself resolved contested issues of law and fact.
- Where a statement of claim is defective or deficient - such as non-compliance with the mandatory requirement to file a schedule of claimants and wages - it is not the duty of the court to breathe life into it, and the defect cannot be cured by referring the claim to a labour officer.
- On a first appeal the Court re-assesses the evidence and reaches its own conclusions but will not lightly differ from the trial judge's findings of fact, interfering only where findings are based on no evidence or wrong principles.
Court orders
#- 1.The judgment delivered by Wasilwa J on 17th January 2023 in Nakuru ELRC and all consequential orders were set aside
- 2.The award based on the figures calculated by the Labour Officer was set aside
- 3.Each party shall bear its own costs for the appeal and the court below
- On appeal from
- Employment and Labour Relations Court, Nakuru
- Cause No. E029 of 2021 (consolidated with Cause Nos. E030 of 2021 and E031 of 2021)
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Employment and Labour Relations Court Act and appellate jurisdiction over ELRC decisions; the judgment expressly frames the duty on a first appeal: 'This being a first appeal, it is our duty to re-assess the evidence on record and arrive at our own independent conclusions.'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Timsales Limited v Kenya Building, Construction, Timber & Furniture Industries Employees’ Union", Case Analysis (2025). Employment and Labour Relations Appeal (as constituted at Eldoret; arising from Nakuru ELRC Cause No. E029 of 2021 consolidated with Cause Nos. E030 of 2021 and E031 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/831/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.