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ELRCPartially AllowedCause No. 81 of 2005

KENYA ENGINEERING WORKERS’ UNION v BROLLO KENYA LTD. [2007] KEELRC 9 (KLR)

Industrial Court of Kenya
3 April 2007
4,057 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This dispute, referred to the Industrial Court by the Minister for Labour under Section 8 of the Trade Disputes Act, Cap. 234, concerned the alleged unlawful lock-out of 37 employees of Brollo Kenya Ltd and the employer's refusal to implement the Court's interpretation of an earlier award (Cause No. 5 of 1999) concerning arrears for six employees. The background was a strike in March 2004, preceded by a 21-day strike notice issued by the Union despite pending negotiations, a Ministerial order under Section 29 declaring the strike unlawful, warning letters from the Company, and the eventual summary dismissal of the 37 grievants. The Union sought unconditional reinstatement or, in the alternative, terminal benefits including twelve months' compensation for unlawful lock-out; the Company contended the strike was unlawful under Sections 26 and 34 of the Act and the dismissals justified, and sought penalties against Union officials and costs. The Court held there was no lock-out: the grievants deliberately ceased work in combination, which was a strike, and it was unlawful because no proper strike notice was given under Section 26 and no trade dispute was reported under Section 4. The arrears grievance was not urgent enough to justify bypassing the statutory machinery. The demands of the 33 grievants who struck were rejected as untenable. However, four grievants (Ng'eno, Mbukuli, Tuva and Mungai) were on leave during the strike with no credible evidence linking them to it; the Court ordered their reinstatement with half wages from dismissal to reinstatement, or terminal benefits plus twelve months' wages each if they declined reinstatement. The Court declined to impose penalties on the Union or its officials. The award was dated and delivered in Nairobi on 3rd April 2007.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 37 grievants were locked out by the Company or staged/participated in an unlawful strike
  2. 2.Whether the summary dismissal of the grievants was wrongful
  3. 3.What remedies, if any, the grievants are entitled to

Key legal issues

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01

Whether there was a lock-out

Holding

No lock-out occurred; the cessation of work was a strike by the employees

Reasoning

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.

p. 7
02

Whether the strike was lawful

Holding

The strike was unlawful; no proper strike notice was given and no trade dispute was reported before the strike

Reasoning

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.

p. 7
03

Whether the summary dismissals were wrongful

Holding

Wrongful only as regards the four grievants who were on leave during the strike

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.Dismissal of the 33 grievants found to have participated in the unlawful strike upheld; their demands rejected
  2. 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. 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. 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

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

JK
majority
DS
majority
Jurisdiction invoked
Section 8 of the Trade Disputes Act, Cap. 234 (reference by the Minister for Labour)

Relief refused

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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

p. 7

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

p. 7

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

p. 7

Costs

No costs order recorded; the Company's prayer for costs under Section 32(1) of the Act was not granted.

Quotable passages

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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.
p. 7No lock-out; unlawful strike
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.
p. 7Strike as a weapon of last resort
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.
p. 7Final orders - reinstatement of the four grievants
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.
p. 7Final orders - alternative compensation

Issues in the judgment

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minor

Judgment refers to the Company ceasing membership of the Association on two different dates

minor

Investigator's report contains a typographical date error

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, "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.