KENYA BUILDING, CONSTRUCTION, TIMBER, FURNITURE & ALLIED INDUSTRIES EMPLOYEES’ UNION v BIASHARA MASTER SAW MILLERS LTD [2004] KEELRC 1 (KLR)
The bottom line
#A Kenyan court ruled that even employees accused of absconding must receive notice and a hearing before dismissal, and awarded full terminal benefits.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the grievants, Michael Gakiria Mwangi and Ngugi Muchiri, absconded or deserted duty as alleged by the Company or were verbally dismissed
- 2.Whether the dismissal of the grievants was wrongful and on account of their trade union activities
- 3.What terminal benefits and compensation, if any, are payable to the grievants
Key legal issues
#Whether failure to give notice and a hearing before termination for alleged absconding vitiates the termination
The Company's failure to issue notices of termination and to afford the grievants an opportunity to be heard rendered its action ineffective in law, even if the grievants had absconded.
The court held that as permanent employees with clean records of 8 and 6 years, the grievants were entitled to notice and the rules of natural justice. The Manager's claim that messengers were sent to the grievants' home areas was insufficient. Had they been heard, the grievants might have advanced mitigating circumstances or explained their absence. Absconding was therefore no answer to the termination.
Whether the grievants were dismissed for trade union activities
The court found that the grievants were verbally and summarily dismissed for their trade union activities, without notice, benefits or good reason.
Both grievants had clean employment records until they were identified as active union members engaged in recruiting employees amid a recognition dispute. The court found the Company's absconding narrative implausible and concluded that nothing adverse had been said or proved against the grievants, whose services had been satisfactory throughout.
Legal principles established
#- A permanent employee is entitled to notice of termination and the benefit of the rules of natural justice before termination; failure to afford a hearing renders the termination ineffective in law.
Court orders
#- 1.An award of the terminal benefits prayed for by the Union in respect of the first grievant, Kshs. 41,326/= (notice pay, leave, gratuity and 4 months' compensation)
- 2.An award of the terminal benefits prayed for by the Union in respect of the second grievant, Kshs. 42,215/= (notice pay, leave, gratuity and 4 months' compensation)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Section 8 of the Trade Disputes Act, Cap. 234 (reference by the Minister for Labour)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the grievants were permanent employees and as such they were entitled to notice and the benefit of the rules of natural justice – “the Administrator is not a Judge in the proper sense of the word, but he must give the party an opportunity of being heard and stating their case and their view”
they were verbally summarily dismissed from service for their trade union activities, without any benefits or notice or any good reason though their services were all along satisfactory as nothing adverse was said or proved against them
Accordingly, and considering the lapse of six years since the grievants were verbally summarily dismissed from service, I am firmly of the view that they are legally entitled to the terminal benefits prayed for by the Union at pages 5 and 6 hereinabove, and I so award.
Issues in the judgment
#The judgment inconsistently dates the second grievant's alleged desertion, referring to his salary receipt on 31st July, 1998 in one passage but 31st July, 2003 in another.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENYA BUILDING, CONSTRUCTION, TIMBER, FURNITURE & ALLIED INDUSTRIES EMPLOYEES’ UNION v BIASHARA MASTER SAW MILLERS LTD [2004] KEELRC 1 (KLR)", Case Analysis (2004). Cause No. 42 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2004/1/eng@2004-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.