Kihato v BOC Kenya Limited (Cause 1233 of 2018) [2024] KEELRC 2202 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant's contract was terminated for valid reason[s]
- 2.Whether the procedure followed was fair
- 3.Whether the prayers sought are merited
Key legal issues
#Whether termination was for valid reasons under Section 43
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
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.
Whether the disciplinary procedure met the minimum standards of fairness under Section 41
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
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.
Whether the Claimant's role as Shop Steward exposed him to victimisation
The click and head-shake directed at the Managing Director was a protected activity of a Workers' Representative and could not ground insubordination
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.
What remedies were due
Declaration of unfair and unlawful termination; 1 month's notice pay; 12 months' compensation; Certificate of Service; costs
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.
Legal principles established
#- 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
#- 1.It is declared that termination of the Claimant's contract by the Respondent was unfair and unlawful
- 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.Certificate of Service to issue
- 4.Costs to the Claimant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
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
Costs
Costs to the Claimant
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.
In sum, it is ordered: a. It is declared that termination of the Claimant’s contract by the Respondent was unfair and unlawful.
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.
Employers have a special duty of care, in handling termination of the contracts of Employees who serve as Workers’ Representatives at their undertakings.
The Respondent did not establish valid reasons, justifying termination.
Procedure was faulty, and did not conform to the minimum standards of fairness, under Sections 41 and 45 of the Employment Act.
Certificate of Service to issue.
Issues in the judgment
#The judgment states inconsistent dates of employment: the claim and findings say employment began 23rd July 1997, but paragraph 52 says 23rd January 1997
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.