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ELRCPartially AllowedNot stated in judgment

Kihato v BOC Kenya Limited (Cause 1233 of 2018) [2024] KEELRC 2202 (KLR)

Employment and Labour Relations Court
13 September 2024
2,637 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a 20-year employee's dismissal unfair, awarding him over Kshs. 1.5 million partly because he was a protected Shop Steward.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent on 23rd July 1997 as an Assistant Plant Operator and later a Maintenance Fitter, was summarily dismissed on 6th September 2017 after a disciplinary hearing held on the same day, on six charges including alleged insubordination — clicking and shaking his head at the Managing Director during a work-review meeting. He was a long-serving Shop Steward and alleged victimisation for defending workers. The Court framed three issues: whether the termination was for valid reasons, whether procedure was fair, and whether the remedies sought were merited. On the evidence, the Respondent's witnesses failed to establish the charges: no record of the disciplinary proceedings was produced to show admissions, the insubordination charge had no supporting witness, and the outcome of the Claimant's 2016 Performance Improvement Plan was never disclosed. The notice of enquiry was not a show-cause letter, only 48 hours' notice was given, and dismissal followed the hearing the same day. Relying on its earlier decision in Kenya Chemical Workers Union v. Dawa Limited and ILO Convention No. 135 and Recommendation No. 143, the Court held that the Claimant's reaction was a protected activity as a Workers' Representative. Both the reasons and the procedure failed the Employment Act's standards under Sections 41, 43 and 45. The Claim partially succeeded: the Court declared the termination unfair and unlawful, awarded one month's notice pay (Kshs. 118,243) and 12 months' compensation (Kshs. 1,418,916), totalling Kshs. 1,537,159, ordered a Certificate of Service to issue, and awarded costs to the Claimant. The prayers for two months' notice pay and CBA salary arrears were rejected for want of evidential support, and no interest was granted as none was sought.

Questions the Court framed

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

  1. 1.Whether the Claimant's contract was terminated for valid reason[s]
  2. 2.Whether the procedure followed was fair
  3. 3.Whether the prayers sought are merited

Key legal issues

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01

Whether termination was for valid reasons under Section 43

Holding

No valid reasons were established; the evidence on the 6 charges was 'helter-skelter' and no record of the disciplinary proceedings showed admission or proof of any charge

Reasoning

The Respondent's own witnesses gave inconsistent and vague accounts; the minutes said to record admissions were never produced (exhibit 3 was in fact a 2016 warning letter); no employee witnessed the alleged insubordination; the PIP outcome was never disclosed; and it was implausible that an employee of over 20 years' service with promotions would suddenly become a poor performer.

p. 4
02

Whether the disciplinary procedure met the minimum standards of fairness under Section 41

Holding

Procedure was faulty; the notice was not a show-cause letter, only 48 hours were given, and dismissal followed immediately on the hearing without deliberation

Reasoning

The Notice of Disciplinary Enquiry did not require the Claimant to show cause why disciplinary action should not be taken; the hearing was held within 48 hours and dismissal issued the same day; the summary dismissal letter asserted admissions without detail; the 3-day right of appeal had no basis in the labour instruments; and the panel appeared predisposed to dismiss the Claimant for antagonising the Managing Director.

p. 4
03

Whether the Claimant's role as Shop Steward exposed him to victimisation

Holding

The click and head-shake directed at the Managing Director was a protected activity of a Workers' Representative and could not ground insubordination

Reasoning

Applying ILO Workers' Representatives Convention No. 135 and Recommendation No. 143, Workers' Representatives enjoy effective protection against prejudicial acts including dismissal based on their status or activities. The Claimant's reaction was deprecation of the Managing Director's diatribe against the workers he represented; the Court found his problems emerged largely from his Shop Steward role.

p. 5
04

What remedies were due

Holding

Declaration of unfair and unlawful termination; 1 month's notice pay; 12 months' compensation; Certificate of Service; costs

Reasoning

Notice pay limited to the statutory minimum of 1 month absent proof of a 2-month contractual/CBA entitlement; CBA salary arrears rejected for want of the CBA itself; 12 months' gross salary compensation granted given 20 years and 7 months of service, no contribution to the dismissal, minimal terminal benefits paid, and no evidence of mitigation; Certificate of Service and costs to the Claimant; no interest as none was sought.

p. 5

Legal principles established

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  • Employers have a special duty of care in handling termination of the contracts of Employees who serve as Workers' Representatives at their undertakings, per ILO Convention No. 135 and Recommendation No. 143
  • Dismissal of a Shop Steward for conduct expressing deprecation of management's attack on workers he represents is dismissal based on a protected activity
  • Termination requires both valid reasons under Sections 43 and 45 and fair procedure under Section 41 of the Employment Act

Court orders

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  1. 1.It is declared that termination of the Claimant's contract by the Respondent was unfair and unlawful
  2. 2.The Respondent shall pay to the Claimant 1-month salary in lieu on notice at Kshs. 118,243 and equivalent of 12 months' salary in compensation for unfair termination at Kshs. 1,418,916 – total Kshs. 1,537,159
  3. 3.Certificate of Service to issue
  4. 4.Costs to the Claimant

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the employment dispute; relevant applicable law in Sections 41, 43 and 45 of the Employment Act

Relief refused

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2 months' salary in lieu of notice at Kshs. 257,358

No individual or collective agreement fixing a 2-month notice period was availed; statutory minimum of 1 month allowed instead

p. 5

Salary arrears for January–September 2017 as per the CBA at Kshs. 93,924

No evidential support; the CBA was not submitted before the Court

p. 5

Costs

Costs to the Claimant

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.

In sum, it is ordered: a. It is declared that termination of the Claimant’s contract by the Respondent was unfair and unlawful.
p. 6Final orders - declaration
The Respondent shall pay to the Claimant 1-month salary in lieu on notice at Kshs. 118,243 and equivalent of 12 months’ salary in compensation for unfair termination at Kshs. 1,418,916 – total Kshs. 1,537,159.
p. 6Final orders - monetary award
Employers have a special duty of care, in handling termination of the contracts of Employees who serve as Workers’ Representatives at their undertakings.
p. 5Protection of workers' representatives
The Respondent did not establish valid reasons, justifying termination.
p. 4Section 43 - valid reasons
Procedure was faulty, and did not conform to the minimum standards of fairness, under Sections 41 and 45 of the Employment Act.
p. 5Section 41 - procedural fairness
Certificate of Service to issue.
p. 2Final orders - certificate of service

Issues in the judgment

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minor

The judgment states inconsistent dates of employment: the claim and findings say employment began 23rd July 1997, but paragraph 52 says 23rd January 1997

minor

The Respondent's list of documents is described as dated 13th September 2018 while its Statement of Response is recorded as filed on 13th December 2018; the judgment also fails to state the case number and title of this Cause

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, "Kihato v BOC Kenya Limited (Cause 1233 of 2018) [2024] KEELRC 2202 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2202/eng@2024-09-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.