KENYA ENGINEERING WORKERS’ UNION v BROLLO KENYA LTD. [2007] KEELRC 9 (KLR)
The bottom line
#Kenya's Industrial Court ruled the workers' strike was unlawful because they skipped the required legal steps, so only four wrongly dismissed employees won reinstatement.
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 37 grievants were locked out by the Company or staged/participated in an unlawful strike
- 2.Whether the summary dismissal of the grievants was wrongful
- 3.What remedies, if any, the grievants are entitled to
Key legal issues
#Whether there was a lock-out
No lock-out occurred; the cessation of work was a strike by the employees
Applying the Section 2 definition of lock-out, the Court found the employer did not close the workplace, suspend work or refuse employment in consequence of a dispute to compel acceptance of terms. Instead, the grievants deliberately ceased work in combination, which constitutes a strike under the statutory definition.
Whether the strike was lawful
The strike was unlawful; no proper strike notice was given and no trade dispute was reported before the strike
The Court found no notice, or proper notice, of strike was given under Section 26 and no trade dispute had been raised under Section 4 before the grievants struck. The grievance over arrears for six employees was not urgent enough to justify bypassing the statutory dispute-resolution procedure.
Whether the summary dismissals were wrongful
Wrongful only as regards the four grievants who were on leave during the strike
Participation in an unlawful strike justified summary dismissal of the striking employees. However, four grievants were on compassionate or annual leave during the strike and there was no credible evidence linking them to it; their dismissal was wrongful and warranted reinstatement and half wages for the period, or terminal benefits plus twelve months' compensation if they declined reinstatement.
Legal principles established
#- A strike requires cessation of work by a body of employees acting in combination under a common understanding, and duration is not a criterion for determining a strike
- Employees should not resort to strike without exhausting the lawful dispute-settlement machinery unless the demand is urgent and serious
- An employee who remains out of employment as a result of an illegal order or through no fault of his own is entitled to wages for the period of unemployment
Court orders
#- 1.Dismissal of the 33 grievants found to have participated in the unlawful strike upheld; their demands rejected
- 2.Reinstatement forthwith of the four grievants (Simon Ng'eno, Simon Mbukuli, David Tuva and George Mungai) under Section 15(1)(i) of the Act
- 3.The four reinstated grievants to be paid half (½) of their wages/salary from the date of wrongful dismissal to the date of reinstatement, with continuity of service, leave and other entitlements restored
- 4.If any of the four grievants found alternative employment or do not wish to return, payment of terminal benefits under the collective agreement plus twelve months' wages/salary each as compensation for wrongful dismissal under Section 15(1)(ii) of the Act
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)
Relief refused
#Unconditional reinstatement of all 37 grievants without loss of wages or benefits
The grievants took part in an unlawful strike in defiance of the Minister's order under Section 29 of the Act; only the four who were on leave during the strike merit reinstatement
Alternative terminal benefits, including 12 months' compensation for unlawful lock-out, for the striking employees
There was no lock-out; the employees engaged in an unlawful strike
Company's prayer for penalties against the Union officials (fine or imprisonment under Section 34)
The Court declined to impose penalties when rejecting the Union's demand
Costs
No costs order recorded; the Company's prayer for costs under Section 32(1) of the Act was not granted.
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.
From the foregoing, we are clear in our minds that there was no lock-out by the Management of the Company, but the grievants had taken recourse to an unlawful strike without adhering to the provisions, especially Sections 26 and 28 of the Act.
It will not be right for employees to think that for any kind of demand a strike can be commenced with impunity without exhausting reasonable avenues for peaceful achievement of their objects.
we award and order that the aforementioned four (4) grievants be reinstated forthwith to their jobs in terms of Section 15(1)(i) of the Act. But considering the long period during which these grievants have remained absent, we award further that they be paid half (½) of their wages or salary from the date of their wrongful dismissal to the date of their reinstatement.
If the said four(4) grievants have since found alternative employment elsewhere, or they do not wish to work for the Company any longer, then they should be paid their terminal benefits in terms of the collective agreement in force at the time of their wrongful dismissal; and, in addition, twelve(12) months' wages or salary each, pursuant to Section 15(1)(ii) of the Act, as compensation for wrongful dismissal.
Issues in the judgment
#Judgment refers to the Company ceasing membership of the Association on two different dates
Investigator's report contains a typographical date error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENYA ENGINEERING WORKERS’ UNION v BROLLO KENYA LTD. [2007] KEELRC 9 (KLR)", Case Analysis (2007). Cause No. 81 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2007/9/eng@2007-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.