Kenya Union of Sugar Plantation & Allied Workers v Nzoia Sugar Co. Ltd. (Cause 113 of 2007) (Employment and Labour) [2008] KEIC 1 (KLR)
The bottom line
#Kenya's Industrial Court ruled Nzoia Sugar unfairly fired three workers, ordering reinstatement and back pay because the company denied them fair hearings.
What this practically means
#Executive summary
#Key legal issues
#Fairness of the summary dismissal of Joseph Wekesa Masai for heckling the Company Chairman at a funeral
The dismissal was unjustified; the grievant was entitled to his entitlements from dismissal until his death, payable to his next of kin
The grievant was disciplined without union representation contrary to the collective bargaining agreement and natural justice; the Chairman was effectively complainant, jury and judge; the grievant was a mourner and not on duty; and no specific rule contravention was pinpointed. The respondent did not appear to challenge these contentions, so the Union's claim stood unchallenged and was allowed.
Fairness of the dismissal and later termination of Kennedy Makokha over alleged misappropriation of funds
The dismissal and termination were suspect and unfair; the grievant was reinstated unconditionally with continuity of service and full wages
The internal audit department first accused the grievant of misappropriation, then exonerated him on appeal, recommending unconditional reinstatement, and later re-accused him in a memo of 7th November 2000. This inconsistency rendered the dismissal and subsequent reduction to termination suspect and unfair. Reinstatement as sought was granted since the claim was unchallenged.
Fairness of the termination of Timona J. Mutonyi after the gantry crane failure
The termination was unjustified; the grievant was reinstated unconditionally with continuity of service and full wages
The grievant had been assigned duties as gantry crane operator without promotion, training or proper pay; he had a clean 20-year record with no prior warnings; and if he was intoxicated, the supervisor who allowed him to operate the crane bore responsibility. The proper remedy would have been redeployment to his tractor driver duties, not termination. The unchallenged claim was allowed.
Procedural consequence of the respondent's failure to file a reply or participate in the hearing
The application for adjournment was overruled and the dispute heard ex parte, with the unchallenged claim allowed
The Company sought an adjournment citing post-election violence, but the Federation of Kenya Employers had had ample time since 24th October 2007 to file a reply and gave no prior notice of any difficulty. The Court, consulting its members, overruled the adjournment; Mr. Kariuki withdrew from the proceedings and the matter was heard and determined ex parte on the Union's written submissions.
Legal principles established
#- An unchallenged claim stands admitted and may be allowed without further proof
- A disciplinary hearing conducted without union representation and where the Chairman is the complainant offends the rules of natural justice
- A supervisor who allows an allegedly intoxicated employee to operate machinery cannot rely on the employee's intoxication as a ground for dismissal
Court orders
#- 1.That the entitlement of the first grievant (Joseph Wekesa Masai, now deceased) from the date of his summary dismissal on 5th September, 2001, until his demise on 24th August, 2005, be paid to his next of kin, preferably his wife or grown up son or daughter
- 2.That the second and third grievants, Kennedy Makokha and Timona J. Mutonyi, be reinstated forthwith and unconditionally to their respective jobs, with continuity of service, seniority, promotion, and privileges, if any, with effect from the dates of their respective dismissals, i.e. 5th June, 2006 and 26th October, 2001
- 3.That the said grievants be paid their full wages or salaries, including house and leave allowances, e.t.c., from the said dates until full implementation of the award
- Jurisdiction invoked
- Trade Disputes Act, Cap. 234 (repealed), Sections 4 and 14(7) and (9)(e) and (f), pursuant to a Notification of Dispute with statutory certificates from the Labour Commissioner and the Minister for Labour and Human Resource Development
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Union of Sugar Plantation & Allied Workers v Nzoia Sugar Co. Ltd. (Cause 113 of 2007) (Employment and Labour) [2008] KEIC 1 (KLR)", Case Analysis (2008). Cause 113 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keic/2008/1/eng@2008-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.