Kenya Union of Commercial, Food and Allied Workers v Jade Collections Limited (Cause 1342 of 2013) [2025] KEIC 1 (KLR)

b. 21 days pending leave each year for three years 21 x 30,000 x 3 ÷26 = 72,692 c. 15 days pay for each completed year of service being service gratuity 30,000 x 3 x 15÷26 - 51,923.10 d. 12 months gross wages being compensation for unfair termination - 30,000 x 12 = 360,000 e. Overtime worked - 30,000 x 127x1.5x12÷195 = 351,692 (d) Ofi duty compensation - 30,000 x 25.5x12÷ 195 = 94,154 Total - 960,461 ii. Simon Wanjohi a. One month's pay in lieu of notice - 15,000 b. 28 days leave 28 X 15,000 ÷26 - 16,154 c. 15 days pay for each completed year of service being gratuity 1 x 15,000 x 15÷ 26 - 8,653.85 d. 12 months gross wages being compensation for wrongful termination 15,000 x 12 -180,000 e. Overtime 15,000x15x127x12÷ 195 - 175,846 Total 395,653 (iii) Nicholas Nyabaya a. One month's pay in lieu of notice - 15,000 b. 30 days pending leave 30 x 15,000 ÷26 - 17,163 c. 15 days pay for each completed year of service being gratuity 1 x 15,000 x 15 ÷26 - 8,653.85 d. Overtime worked 15,000x 127x1.5x12 ÷195 - 175,846 e. 12 months gross pay being compensation for wrongful termination 15,000 x 12 - 180,000 Total 396,660 (iv) Kevin Odala a. One month's pay in lieu of notice - 15,000 b. 30 days pending leave 30 x 15,000÷26 - 17,163 c. 15 days pay for each completed year being gratuity 15,000 x 1x 15 ÷26 - 8,654 d. Over time worked 15,000 X 127x1.5x12÷12 - 175,844 e. 12 months gross wages being compensation for wrongful termination 10,000 x 12 - 180,000 Total due 396,661 https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18 2

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(v) Daniel Otιενο a. One month's pay in lieu of notice - 15,000 b. 30 days pending leave 30x15,000÷26 - 17,163 c. 15 days pay for each completed year being gratuity 15,000 x 1x 15÷ 26 - 8,654 d. Over time worked 15,000 x 127 x 1.5x12÷195 - 175,885 e. Ofi duty compensation 15,000 x 24x2x12÷195 - 44,308 f. 12 months gross wages being compensation termination for wrongful 15,000x12 - 144,000 Total due 404,710 (vi) Sylvester Ouma Okoli a. One month's pay in lieu of notice 20,000 b. 63 days pending learn 21x3x20000÷26 - 48,462 c. 15 days pay for each completed year being gratuity 20,000 x 3 x 15÷26 - 34,615 d. Over time worked 20,000x 127x1.5x12÷195 - 234,462 e. Ofi duty compensation 20,000x24x2x12÷195 - 59,077 f. 12 months gross wages being compensation for wrongful termination 20,000 x 12 - 240,000 Total due 636,616 (vii) Francis Mwangi Thiongo a. One month's pay in lieu of notice - 30,000 b. 21 days pending learn 21x10,000÷26 - 7,293 c. 15 days pay for each completed year being gratuity 30,000 x 3 x 15÷26 - 51,923 d. Over time worked 20,000x 127x1.5x12÷195 - 351,692 e. Ofi duty compensation 30,000x24x2x12÷195 - 88,615 f. 12 months gross wages being compensation for wrongful termination 30,000x12 - 360,000 Total due 954,923 (viii) Simon Musili a. One month's pay in lieu of notice - 15,000 b. 63 days pending leave 63 x 15,000 3÷26 - 36,346 c. 15 days pay for each completed year being gratuity 15,000x3x15÷26 25,961.55 d. Overtime worked 15,000 x 127x1.5x12÷195 - 175,846 https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18 3

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e. Ofi duty 15,000x 24x2x12÷195 - 44,308 f. 12 months gross wages being compensation for wrongful termination 15,000 x12 - 180,000 Total 477,462 (ix) Jeremiah Nguinjiri a. One month's pay in lieu of notice - 15,000 b. 35 days pending leave 35 x 15,000÷26 - 20,192 c. 15 days pay for each completed year being gratuity 15,000 x 1x 15÷26 25,961.55 d. Over time worked 15,000x127x1.5x12÷195 - 175,846 e. Ofi duty 15,000x24x2x12÷195 - 44,308 f. 12 months gross wages being compensation for wrongful termination 15,000x 12 - 180,000 Total 461,308 (x) Samuel Kinja a. One month's pay in lieu of notice - 12,000 b. 30 days pending leave 30 x 12,000÷ 26 - 13,731 c. 15 days pay for each completed year being gratuity 12,000 x 1x 15÷26 6,923.10 d. Over time worked 12,000x127x1.5x12÷195 - 140,677 e. Ofi duty 12,000x24x2x12÷195 - 35,446 f. Underpayment of wages 13,317-12,000)x12 - 15,804 g. 12 months gross wages being termination12,000x12 - 144,000 compensation for wrongful Total 368,581 (xi) Lucy Wanjiru Kariuki a. One month's pay in lieu of notice - 15,000 b. 16 days pending leave 16 x 15,000 ÷26 - 9,087 c. Over time worked 15,000 x127x1.5x9÷195 - 131,885 d. Ofi Duty 15,000 x 24x2x9÷195 - 33,231 Total Due 189,203 (Xii) Nelson Okota a. One month's pay in lieu of notice - 18,000 https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18 4

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b. 14 days pending leave 14 x 18,000÷26 - 9,087 c. Over time worked 18,000x127x1.5x8÷195 - 140,677 d. Ofi duty 18,000x24x2x12÷195 - 53,169 Total due 220,933 (xiii) Anejoy Gatwiri a. One month's pay in lieu of notice - 15,000 b. 63 days pending leave 63x15,000÷26 - 36,346 c. 15 days pay for each completed year being gratuity 15,000x4x15÷26 34,615.40 d. Over time worked 15,000x127x1.5x12÷195 - 175,846 e. Ofi duty 15,000x24x2x12÷195 - 44,308 f. 12 months gross wages being compensation for wrongful termination 15,000x12 - 180,000 Total due 486,115 (xiv) Carolyn Nzau a. One month's pay in lieu of notice - 20,000 b. 53 days pending learn 53 x 20,000 ÷26 - 40385 c. 15 days pay for each completed year being gratuity 20,000 x 2x 15÷26 - 23,077 d. Over time worked 20,000 x 127x1.5x12÷195 - 234,462 e. Ofi duty 20,000 x24x2x12 ÷195 - 59,077 f. 12 months gross wages being compensation for wrongful termination 20,000x12 - 240,000 Total due 617,001 (xv) Rose Wanjiku a. One month's pay in lieu of notice - 15,000 b. 58 days pending leave 58 x 15,000÷26 - 33,317 c. 15 days pay for each completed year being gratuity 15,000 x 2x 15÷26 17,307.70 d. Over time worked 15,000 x1.5x127x12 ÷195 - 175,846 e. Ofi duty compensation 15,000 x24x2x1 ÷195 - 44,308 f. 12 months gross wages being compensation for wrongful termination 15,000x 12 - 180,000 Total 448,472 https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18 5

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(xvi) Antony Githinji a. One month's pay in lieu of notice - 12,000 b. 18 days pending leave 18 x 12,000÷26 - 33,317 c. Over time worked 12,000x1.5x127x10÷195 - 117,231 d. Underpayment (11,580+15%)-12,000)x10 - 13,170 e. Ofi duty compensation 12,000 x24x2x10÷195 - 29,538 f. 12 months gross wages being compensation for wrongful termination 12,000 x 12 = 144,000 Total 448,472 (xvii) Daniel Macharia One month's pay in lieu of notice - 20,000 63 days pending learn 21x3x20,000÷26 - 48,462 15 days pay for each completed yearly of service 15 x 3 x 20,000÷ 26 - 34,615.40 Over time worked 20,000 x 127x1.5x12÷195 - 234,462 Ofi duty compensation 20,000 x24x2x12÷195 - 59,077 12 months gross wages being compensation for wrongful termination 20,000x 12 240,000 Total 636,614 Total Claim = Kshs. 6,251,194, Grounds of the claim 2. Section 4 of the Labour Relations Act, 2007, allows employees to join Trade Unions. This right is anchored on Articles 36 and 41 of the Constitution of Kenya, 2010 arising from any other prejudice arising from Trade Union membership. 3. The Seventeen (17) employees were suspended indefinitely and later verbally terminated on account of their Union membership and were not allowed to access the Respondent's premises. This is in violation of Section 5 of the Labour Relations Act, 2007 and also in contravention of Articles 36 and 41 on freedom of Association and the right to form, join and participate in the activities and programmes of a Trade Union. 4. The Respondent's employees opted to join the Claimant Union as members. See App. MO. 27. They must not sufier for enjoying a right-grounded-on-the-law and the Constitution. 5. The grievants were not notified and heard before their suspensions and subsequent termination of employment. They were equally not given a chance to appear before the Respondent accompanied by other employees of their own choice when the decision to terminate them was taken. This is in violation of the Employment Act, 2007. 6. The claimant relied on the witness statement of George Mutuma Nteere dated 21st February 2022 and documents under list of documents dated 21st February 2022 and the grievants’ witness statements. https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18 6

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Response 7. Pursuant to leave of the Court of Appeal dated 19th June 2020, the respondent filed a statement of response dated 14th August 2020 and denied the victimization allegations and submitted that the grievants absconded duty and due process was followed before termination. It also took the position that there was no recognition agreement and the grievants were not members of the claimant and at same time stated that the claimant had not recruited a simple majority of its employees. In support of its defence, the respondent filed a list of documents dated 3rd October 2022 and the bundle, witness statement of Harun M. Nguru dated 30th October 2022. Hearing and evidence 8. The claimant’s case was heard on the 10th February 2025 following the setting aside of earlier judgment of the court by the Court of Appeal which granted leave to the respondent to defend the suit. The claimant had since dropped some grievant and retained only 4 being Mutuma, Ondalo, Musili and Okoli at the hearing. 9. CW1 was George Mutuma Nteere who testified on oath, adopted his witness statement dated 21st February 2022 and produced documents for the claimant. CW2 was Kelvin Ondalo who adopted his witness statement date 5th April 2023 and stated he authorised CW1 to testify on his behalf. CW3 was Simon Musili who adopted his witness statement dated 5th April 2023. The three witnesses were crossexamined by counsel for the respondent, Ndegwa. 10. The respondent’s case was heard on the 26th March 2025 with Harun Maina Nguru testifying on oath as RW1. He adopted as his evidence in chief, his witness statement dated 30th October 2022. He produced the respondent’s documents as R-exhibits 1- 114. He was cross-examined by the union representative, Mr. Nyumba. Determination Issues for determination 11. 12. 13. The claimant addressed the following issues in its submissions(i) Whether there was victimization on account of union membership and eventual suspension of employees. (ii) Whether there were genuine grounds for suspension and whether the warning/suspension letters amounted to constructive action to get rid of the grievants. (iii) Remedies available under the law. The Respondent addressed the following issues in its submissionsa. Whether the Claimant has locus standi to institute the suit, or purport to act on behalf of the grievants b. Whether the Grievants who prosecuted their case are members of a union, C. Whether the orders sought are merited. The court finds that the issue for determination to be 1. Whether the claimant had locus to file the suit https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18 7

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2. Whether the grievants were members of the union 3. Whether the 4 grievants were victimized for joining the union 4. Reliefs Whether the claimant had locus to file the suit Claimant’s submissions 14. Upto December 2012, there could have been genuine concerns leading to warnings which the grievants answered for adequately and concluded. However, the warning issued to Mr. Mutuma on 6th March, 2013 (Page 4 of the Respondent's list of documents) is completely misplaced as he was warned/ suspended on the alleged misconduct of a Ms. Maryann and there is no evidence of any action having been taken against the said lady. In the month of April 2013 warnings and suspension letters were abused all because of employee's union membership which had just been brought to the attention of the Respondent. Union/Employer meetings which were convened to take place were all ignored as employees, specifically those who confirmed their union membership, had all been suspended and sent home. Victimization on account of union membership is therefore evident which lead to suspension to date. 15. On whether there were genuine grounds for suspension and whether the warning/suspension letters amounted to constructive action to get rid of the grievants- Arising from several warning/suspension letters, which followed each other, and which did not allow employees to serve one suspension before another suspension was efiected, it turns out that this was a fault finding expedition to build a case for suspension and lose of employment. The Respondent's myriad warning /suspension letters were all meant to construct a case for loss of employment, all on account of employee's union membership. The Respondent, in their haste to get rid of union members, violated the terms of their own fixed term contracts, without genuine and sound reasons for such contracts to be prematurely suspended. When the grievants visited the Respondent to know the fate of their jobs, they were rebuked as being a nuisance and action was threatened against them under the Penal Code Laws of Kenya. (Exhibits at pages 51-56 of the Claim) 16. Articles 36 and 41 ((1) (c) of the Constitution of Kenya 2010, guarantee freedom of Association of any kind and the right to form or participate in the activities and programmes of a Trade Union. The Respondent can never attempt or purport to deny his employees these fundamental rights. Articles 22(1) of the Constitution of Kenya 2010, enforcement of the Bill of Rights gives every person the right to institute Court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed or threatened as in this case. Articles 23 (3) of the said Constitution empowers the Court to grant relief including an order for compensation. Section 12 subsection 3 of the Industrial Court 2010, empowers the court to make an award of compensation as explicitly provided for under the Employment Act, 2007. 17. The Respondent's argument that the employees were absent, rude and/or in disciplined could not have started only after 1st April, 2013 when they learnt of employees Trade Union membership. The verbal suspension on 4th April, 2013 was meant to cause fear and intimidate employees from joining the Union. It was also meant to defeat the meeting which had been proposed to take place on 10th April, 2013 to discuss Recognition Agreement. Whereas the Respondent advised the Claimant to file this dispute in Court on 11th April 2013 the Claimant found it necessary to follow due process as detailed in the Labour Relations Act, 2007. The Respondent, who all along wanted this matter to be https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18 8

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filed in Court declined to cooperate with the Conciliator and did not submit their written proposals much as they ignored to attend the conciliation meeting. The respondent’s submissions 18. The Claimant lacks the legal standi to issue correspondence, represent, or purport to represent the grievants in this matter. At the time of filing this suit on 2nd August 2013a. the grievants were not members of the Claimant union; b. no recognition agreement existed between the Respondent and the Claimant herein and further; c. the Claimant had not met the simple majority threshold required under Section 54(1) of the Labour Relations Act, 2007 which stipulates as follows in regards to recognition agreements: ‘An employer, including an employer in the public sector, shall recognise a trade Union for purposes of collective bargaining if that trade Union represents the simple majority of Unionisable employees." Recognition Agreement Under Section 54(1) of the Labour Relations Act, 2007, an employer shall only recognize a trade union if it represents a simple majority of unionisable employees. The case of Kenya Tea Growers Association v Kenya Plantation & Agricultural Workers Union (2012) eKLR _held that recognition is only available to a union that has met the simple majority threshold and formally entered a recognition agreement. In this case, the Respondent has One Hundred and Eighty One (181) unionisable employees, however the grievants are only Seventeen (17) which is clearly not a simple majority. The Respondent further avers that at the time of filing the suit, there existed no lawful recognition agreement between the Respondent and the Claimant union. The recognition agreement, upon which the Claimant now relies, was entered into subsequent to a court order issued after the filing of this suit. This sequence indicates that, at the material time the employees had not met the statutory threshold under Section 54 of the Labour Relations Act to warrant recognition of the Claimant as a Recognition agreement is a mandatory legal prerequisite before a union can lawfully act as a representative body of employees in any capacity, including dispute resolution or litigation. Respondent avers that in view of the fact that the Claimant does not have a recognition agreement with the Respondent, it has no locus standi to represent the Grievant Simple Majority Threshold Under Section 54 Of The Labour Relations Act,2007. The respondent submits that the Claimant has not recruited a simple majority of membership from its unionisable employees of the Respondent at the time of filing this suit. The Respondent avers that Section 54 of the Labour Relations Act, 2007 provides for the recognition of trade union by an employer and the main requirement is that the trade union must be representative of a simple majority of the unionisable employees. The Respondent herein contends that the Claimant union at the time of filing the suit had recruited Seventeen (17) out of One Hundred and Eighty One (181) unionisable employees. In light of the above, that the Claimant Union did not have a simple majority of the Total unionisable employees at the time of instituting the claim as supported by the Respondent's Written Statement of Response dated 14th August 2020. The grievants allegedly joined the union only after disciplinary proceedings began, the act amounts to forum-shopping and abuse of court process. The Respondent says that while employees (herein grievants) has the right to join Union, the timing and purpose of such membership are crucial. If employees join a union solely to initiate litigation, without genuine intent to participate in collective bargaining and other union activities, it indicates an ulterior motive as seen in this case. This is an abuse of court process and therefore the suit should stand dismissed as was in the case of Kenya Engineering https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18 9

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Workers Union v Kenya General Industries Limited (2023) eKLR where the court dismissed claims that were duplicate and constituted an abuse of court process. Decision 19. On whether the grievants were valid members of the Claimant- The burden of proof lies on the Claimant to show that the grievants were members of the union as at time of filing suit. The Respondent in this case while relying on their Written Statement of Response dated 14th August 2020 contends that the grievants were not members of the Claimant union. The respondent relied on the case of Tailors and Textiles Workers Union v New Wide Garments Kenya EPZ Limited (2013) eKLR, where the court held that a mere allegation of membership without proof cannot found a valid union representation. The court required evidence of majority representation for union recognition. The Respondent further contented that if the grievants had joined the Claimant's body during their employment, then they did so just to file this suit intended to unjustly enrich themselves. It is the Respondent further averment that the grievants allegedly joined the union only after disciplinary proceedings began, the act amounts to forum-shopping and abuse of court process. The Respondent says that while employees (herein grievants) has the right to join Union, the timing and purpose of such membership are crucial. If employees join a union solely to initiate litigation, without genuine intent to participate in collective bargaining and other union activities, it indicates an ulterior motive as seen in this case. This is an abuse of court process and therefore the suit should stand dismissed as was in the case of Kenya Engineering Workers Union v Kenya General Industries Limited (2023) eKLR where the court dismissed claims that were duplicate and constituted an abuse of court process. 20. It was not in dispute the claimant was a valid union. The court found admission in the witness statement of the RW1 in paragraph 12 ,13,14 ,15,17 and 18 that it was aware of the grievants having joined the union. The respondent raised issue of a lack of union numbers in the check ofi forms and even interrogated the employees on the union membership leading to the statement that the employees realised they had joined a union and not a chama. The court noted the grievants joined the union on 26th March 2013, the union on 1st April 2013 sought for meeting with the respondent , on the 4th April 2013 the grievants were all issued with warning letters which they received on same date. The court sampled the letter to CW1 who had authority of the other 4 grievants to testify. CW1 told the court they were victimised for joining the union. 21. The union has a right to represent its members once they register whether or not it meets simple majority for recognition. The claimant produced the check ofi forms at page 150 of its documents. The names of the 4 grievants were there. They had signed and dated the forms. That was suficient proof that the employees had consented to membership and the employer had no business interrogating the employees to come up with the allegations that they thought they were joining a chama. The court upholds the finding by Justice Abuodha in ruling dated 23rd June 2017 in the suit that the membership of the grievants was between 26th march -2nd April 2013. The court further upheld the finding by Justice Abuodha in same decision in paragraphs 20 and 21 of the said decision on the issue of representation of the grievants by the union-‘20. The union is by virtue of section 22 of the Employment and Labour Relations Court Act an authorized party for purposes of concerning proceedings on behalf of its members before the court. This section read together with section 62 of the Labour Relations Act gives a trade union the right to invoke the pre- trial dispute resolution mechanisms provided for in the Labour Relation Act before bringing the dispute to court for adjudication. 22. . The court further states that collective bargaining is for the purposes of bargaining between the Union and the Employer over terms and conditions of service for employees in active employment of an employer. For this, recognition is necessary and however, a union need not have a recognition https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18 10

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agreement to agitate or intercede in other fora on behalf of its members in the employment of an organization where it does not enjoy recognition.’ In the upshot I hold that the claimant had a right to represent its members without recognition agreement. Whether the 4 grievants were victimized for joining the union The respondent denied victimization of the claimants and asserted they absconded duty. The claimant’s submissions 23. Arising from several warning/suspension letters, which followed each other, and which did not allow employees to serve one suspension before another suspension was efiected, it turns out that this was a fault finding expedition to build a case for suspension and lose of employment. 46. The Respondent's myriad warning /suspension letters were all meant to construct a case for loss of employment, all on account of employee's union membership. 47. The Respondent, in their haste to get rid of union members, violated the terms of their own fixed term contracts, without genuine and sound reasons for such contracts to be prematurely suspended. 48. When the grievants visited the Respondent to know the fate of their jobs, they were rebuked as being a nuisance and action was threatened against them under the Penal Code Laws of Kenya. Exhibits at pages 51-56 of the Claim. Respondent’s submissions 24. The Respondent continues to say that even assuming arguendo that the grievants were union members, the Claimant has not demonstrated a causal link between the suspension and their union afiliation. Employers are entitled to discipline employees for misconduct, provided due process is followed as evidenced by the Respondent's conduct herein and his list of documents adduced. The Law does not shield employees from disciplinary action merely because they are union members. In the case of Kenya Union of Commercial Food and Allied Workers v Nestle Kenya Limited; Owinyo and 7 others (2024) Eklr, the court stated that union membership does not immunize employees from lawful disciplinary actions from their employers. The court dismissed claim due to lack of substantive proof. In this case the Claimant alleges unfair suspension and victimization due to union membership but has not provided suficient evidence to support the same. Without concrete evidence linking the suspensions to union activities, the Claimant's allegations remain unsubstantiated. To this end therefore the Respondent avers that the orders herein sought by the claimant are not merited. Additionally, having established that the Claimant lack the locus standi to represent the grievants, the absence of a recognition agreement, insuficient union membership and failure to prove victimization as discussed above, it is therefore sufice that orders sought are not merited in law and in fact. Without prejudice to the foregoing, in the previous judgment delivered on 23rd November 2015 (now set aside) the three(3) grievants who have herein prosecuted their case were awarded as follows: Geogre Mutumа One month salary in lieu of notice Kshs- 30,000.00 Service Kshs. 45,000.00 (30,000/30*15*3) Compensation at 12 months Kshs 360,000.00 Kevin Odalo One month salary in lieu of notice Kshs 15,000.00 Service Kshs. 7,500.00- (15,000/30*15*1) Compensation at 12 months Kshs. 180,000.00 Simon Musili One month salary in lieu of notice Kshs 15,000.00 Service Kshs. 22,500.00 (15,000/30*15*3) Compensation at 12 months Kshs. 180,000.00 The Claimant cannot therefore claim for any amounts more that the above, as the court had awarded them reasonably. https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18 11

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Decision 25. The court is persuaded there was a case of victimization of the grievants upon joining the union taking into account the events after their joining of the union between 26th March to 2nd April 2013. All of them were issued with a warning letter dated 4th April 2013 the content as follows:- .’’warning Letter Atin: George Mutuma. Date 04/04/13, Jade collection Ltd is an organization brought up by stafis of good moral values and discipline that has been seen in the recent past, Jade collection Itd on its solely discretion has a well laid down rules and Regulations that governs the institution alongside the contract as in the terms of employment stating clearly the terms and condition. Indiscipline cases upon the stafi members with several verbal warning unto you seems to have fallen on DEAF ears. Note that it is not upon several verbal warning that it has come to the notice of the management of your current behaviors, You are therefore suspended for Two(2)weeks from the date stated hereof and warned that a repeat of the same will give the management a no other alterative other than a stifi disciplinary action including dismissing you on duty without any other warning. Yours faithfully, Jade Collections Ltd, Manager: Martin Shikuku.’’ CW1 who had authority to testfit on behalf of the others told the court the letter was preceded by a meeting of which they were warned of unionisation. The employer denied the meeting. The letter does not disclose the type of in-discipline and the court concluded that CW1 testimony that it followed a meeting was true. RW1 during cross-examination to the court that the grievants were dismissed for absconding . he said they were dismissed and as proof relied on the letter dated 19th April 2013 (page 11 of respondent’s bundle). ‘’Re: Absconding After the lapse of your suspension you came back but refused to take up the roles as communicated by the demotion letter and you walked away and absconded duty. Kindly note that the Company needs to be aware of your status because we do not have any formal communication from your end on whether you are still an employee of Jade Collection or not. 19/04/13 Yours Faithfully. Box 12999-00400 Naikus Jade Collection Manager’’ The court noted the letter did not have any address of the grievants nor was there evidence it was received by the grievants. The grievants stated that they were barred from accessing the shop fioor upon end of the 2 weeks suspension. What was the truth? The claimant produced undisputed letters authored by Tim Okwaro Associates Advocates and copied to the respondent. they were addressed to the grievants. A letter to CW is reproduced:- https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18 12

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‘’Tim Okwaro Associates Advocates Commissioner for Oaths 4th House Suite 32 aya Street Notary Public T.V.M. Okwaro, LL.B.HONS, (Nairobi) CLP (Kenya School of Law) Box 10964-00100 Nairobi, Kenya Tel: 0716021905 Your Ref: Date: 18.04.2013 Mr. George Mutume Nairobi XXXXXXXXXX Re: Jade Collection Limited Suspension We act for Jade Collection Limited. On behalf of our client we must write to you as follows: 1. You were suspended for good reason by our client as your employer. 2. The Employment Act 2007 is the relevant Law in a matter like this. 3. Pursuant to the Law you will remain suspended until our client makes a competent decision regarding your employment. 4. Take notice that the Law does not provide for you to keep visiting our client's premises. This makes you a nuisance and it is likely to lead to an ofience of behaving in a manner likely to cause a breach of the peace contrary to the Penal Code Cap 63 Laws of Kenya. Stop it immediately and patiently keep away and await communication from our client. 5. If you do not agree with the position we have espoused then pass this letter to your Lawyer to communicate with us in a more professional way Yours faithfully, Tim Okwaro Associates F.v.m.okwaro CC. Jade Collection Ltd’’ The letter is dated 18th April 2013, a day before the letter relied on by RW1 of 19th April 2013 on absconding. The advocates have admitted that the indeed the grievants were prohibited from the shop fioor and were informed to stay away. How can the respondent then accuse them of absconding. The letters were produced without any objection. 26. Consequently the court finds that the claimant proved its case of victimization for the grievants for joining the union on a balance of probabilities. The rights of the employees to unionise is protected by Article 41 of the Constitution as follows:- ‘’41. Labour relations (1) Every person has the right to fair labour practices. https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18 13

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(2) (4) (5) Every worker has the right— (a) to fair remuneration; (b) to reasonable working conditions; (c) to form, join or participate in the activities and programmes of a trade union; and (d) to go on strike.(3) Every employer has the right— (a) to form and join an employers organisation; and (b) to participate in the activities and programmes of an employers organisation. Every trade union and every employers’ organisation has the right— (a) to determine its own administration, programmes and activities; (b) to organise; and (c) to form and join a federation. Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.’’ These rights are further provided for under the ILO convention of Right to Organise and collective bargaining of 1949 (No. 98) Ratified By the Republic of Kenya. The respondent is guilty of victimization of the grievants for unionisation. Whether the claimant is entitled to reliefs sought 27. The court finds that the respondent having relied on the letter of 19th April 2013 as the letter of dismissal and following the above findings that by letter of 18th April 2013 the grievants were informed to stay away from the shop fioor until further decision holds that thus was a case of unfair illegal termination. 28. The respondent asked the court to uphold the set aside judgment by Justice Nzioki wa Makau. That judgment was set aside and of no impact to this court. the claimant dropped the case of several grievants and retained 4 of which CW1 testified on their behalf. I will award the 4 grievants namely – Mutuma, Ondalo, Musili and Okoti No evidence was place before the court to challenge the leave, overtime, ofi duty and gratuity On gratuity the court noted the grievants were under NSSF and thus gratuity not a right (section 35(6) of the employment act On leave there was no contrary documents. The court noted that the claimant never led any evidence that the grievants applied for the leave and it was denied. The same is limited to 18 months which are allowed as capable of being carried forward under section 28(4) of the Employment Act. The case of overtime and ofi duty requires prove strictly of the hours worked outside the oficial hours (authority ) The same is disallowed. The grievants employment as per the performance contract dated 10th January 2013 were coming to end on 31st December 2013(page 59 of the claimant’s documents). A fixed contract ends by efiusion https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18 14

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and there is no obligation to renew. The court finds that compensation of 12 months would be excessive despite the victimization. The court awards notice pay of 1 month and compensation of salary equivalent of 6 months to each of the grievants. In conclusion The claim is allowed. Judgment is entered for the claimant on behalf of the grievants against the respondent as follows:A declaration that the grievants were victimized for unionisation and unfairly terminated from work. George Mutuma Notice pay of Kshs. 30000 Untaken leave 18 months -45000 Compensation for unfair termination equivalent of 6 months gross salary Kshs 180,000 Total award Kshs. 225,000 with interest at court rate from date of filing suit Simon Musili Notice pay of Kshs. 15000 Untaken leave 18 months -22500 Compensation for unfair termination equivalent of 6 months gross salary Kshs 90,000 Total award 127500 with interest at court rate from date of filing suit Kevin Odala Notice pay of Kshs. 15000 Untaken leave 18 months -22500 Compensation for unfair termination equivalent of 6 months gross salary Kshs 90,000 Total award 127500 with interest at court rate from date of filing suit Sylvester Ouma Okoli Notice pay of Kshs.20000 Untaken leave 18 months -30000 Compensation for unfair termination equivalent of 6 months gross salary Kshs 120000 Total award 170000 with interest at court rate from date of filing suit Cost of the claimant awarded under rule 70 (4) of the Employment and Labour Relations Court (Procedure) Rules 2024 for a reasonable sum to cover expenses in the matter taking into account the default proceedings were set aside Kshs. 100,000 Stay of 30 days. It is so ordered DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 18TH DAY OF JULY, 2025. J.W. KELI, JUDGE. https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18 15

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In The Presence Of: Court Assistant: Otieno Claimant: Muunda Respondent: Ms Mungala h/b Ndegwa https://new.kenyalaw.org/akn/ke/judgment/keic/2025/1/eng@2025-07-18 16

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