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ELRCDismissedELRC Appeal (Mombasa) arising from Mombasa CMELRC No. 603 of 2023· [2025] KEELRC 2312 (KLR)

Mwadori v Milly Glass Works Limited (Appeal E035 of 2025) [2025] KEELRC 2312 (KLR)

Employment and Labour Relations Court
31 July 2025
MMM. Mbarũ
1,831 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed that unionised employees relying on a CBA must file trade disputes in the ELRC, not magistrates' courts, and lost their appeal.

What this practically means

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Executive summary

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This was a first appeal to the Employment and Labour Relations Court at Mombasa against the judgment of 20 February 2025 in Mombasa CMELRC No. 603 of 2023, in which the learned magistrate dismissed the appellant's claim for lack of jurisdiction. The appellant, a general worker engaged on renewable one-year contracts from 2017 and earning Ksh.15,609 monthly, claimed notice pay, gratuity, leave travelling allowance, balance of contract period and 12 months' compensation following termination on 20 May 2021 for alleged sabotage. His claims were anchored on clauses 23 and 12[b] of a CBA between the Kenya Chemical Workers Union and the respondent. The magistrate held that, the claim being founded on a CBA, she lacked jurisdiction. On appeal, M. Mbarũ J affirmed. The court found from the payment statement for March 2021 that the appellant was unionised and making remittances to the union, so his dispute was a trade dispute within section 2 of the Labour Relations Act, excluded from the magistrates' jurisdiction under Legal Notice No. 6024 of 2018; the ELRC retains original jurisdiction over trade disputes. The court declined to hear the merits afresh, as that would deny the respondent a fair hearing in the appropriate forum. In any event, on the record the summary dismissal under section 44para 4[c] of the Employment Act for gross misconduct (muddied bottles awaiting dispatch, following customer complaints) was justified, the appellant having been heard and having failed to challenge the grounds. Gratuity and notice pay were unavailable on summary dismissal, and the conditional leave travelling allowance claim was unproved. The appeal was dismissed with each party bearing its own costs.

Key legal issues

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01

Jurisdiction of the magistrates' court over claims founded on a CBA by a unionised employee

Holding

The trial court lacked jurisdiction; the claim based on CBA terms by a unionised employee constituted a trade dispute reserved for the ELRC.

Reasoning

The appellant was unionised, as shown by check-off remittances to the Kenya Chemical Workers Union in the March 2021 payment statement, and his claims (gratuity and leave travelling allowance) were founded on CBA clauses 23 and 12[b]. Such a dispute falls within the statutory definition of a trade dispute under the Labour Relations Act and is excluded from the magistrates' delegated jurisdiction under Legal Notice No. 6024 of 2018.

p. 2
02

Justification of summary dismissal under section 44 of the Employment Act

Holding

The termination was justified as gross misconduct, the appellant having been heard and having failed to give a satisfactory explanation.

Reasoning

Two bottles of 750 Kvint were found with mud in a packed pallet awaiting dispatch, following prior complaints from the customer Mega Beverages Tanzania. The appellant was suspended, invited to a disciplinary hearing, and terminated under section 44para 4[c] of the Employment Act. He did not challenge the grounds in his evidence, only alleging victimisation for union membership, which the record did not support.

p. 4

Legal principles established

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  • Legal Notice No. 6024 of 2018 conferred jurisdiction on magistrates' courts over employment disputes only, excluding trade disputes, over which the ELRC retains original jurisdiction.
  • A dispute between a unionised employee and an employer arising out of the employment relationship is a trade dispute rather than an employment claim.
  • Summary dismissal is justified where an employee is guilty of gross misconduct and, having been invited to make representations, fails to provide a satisfactory explanation.

Court orders

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  1. 1.The appeal is without merit and is hereby dismissed
  2. 2.Each party to bear its costs

Authorities

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Legislation

  • Magistrates Court ActSection 9
  • Industrial Court Act (since repealed)Section 29
  • Employment ActSections 10, 26, 41[2], 43, 44[4][c]
  • Labour Relations ActSection 2 (definition of trade dispute)
  • Legal Notice No. 6024 of 2018Conferral of jurisdiction on magistrates' courts over employment disputes
  • Employment and Labour Relations Court [Procedure] Rules 2016commencement of claims

Cases cited (6)

  • Janet Chepkempi Machira & another v Laikipia University
    [2011] eKLR
  • Onyango v Ken Knit Kenya Limited
    [2024] KEELRC 1569 [KLR]
  • Kenga Equatorial Hotels t/a Mombasa Continental Resort v Chege
    [2025] KEELRC 162 [KLR]
  • Roadtainers [Msa] Ltd v Munuve
    [2025] KECA 1302 [KLR]
  • Elsa’s Kopje Limited v Mwendwa
    [2025] KECA 725 [KLR]
  • Geoffrey Gikonyo Mathu v Intex Construction Company Limited
    [2017] eKLR
On appeal from
Magistrates' Court (CMELRC), Mombasa
Mombasa CMELRC No. 603 of 2023
Jurisdiction invoked
Appeal from the magistrates' court exercising jurisdiction conferred by Legal Notice No. 6024 of 2018 under the Industrial Court Act (as repealed) and the Magistrates' Court Act

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, "Mwadori v Milly Glass Works Limited (Appeal E035 of 2025) [2025] KEELRC 2312 (KLR)", Case Analysis (2025). ELRC Appeal (Mombasa) arising from Mombasa CMELRC No. 603 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2312/eng@2025-07-31

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