[2018] KEELRC 1442 (KLR)
The court found that the claimants' terminations occurred in February 2008, prior to the commencement of the current Employment Act. At that time, the repealed Employment Act governed employment relationships and did not require a disciplinary hearing before termination, nor did it provide remedies for unfair...
Source-derived case information.
- Citation
- [2018] KEELRC 1442 (KLR)
- Parties
- Applicant: Henry Oviyo & 4 Others; Respondent: Nairobi Bottlers Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 468N of 2009
- Procedural Posture
- Employment Claim / Judgment
- Outcome
- suit dismissed
- Judges
- DI Wasike
- Legal Topics
- Unfair Termination, Disciplinary Procedure, Retrospective Application, Employment Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Henry Oviyo & 4 Others
Applicant
Nairobi Bottlers Ltd
Respondent
Procedural Posture
Employment Claim / Judgment
Legal Issues
- 1 Whether the claimants were unfairly terminated by the respondent under the applicable law at the time.
- 2 Whether the remedies under the current Employment Act could be applied retrospectively to the claimants' cases.
Ratio Decidendi
The court found that the claimants' terminations occurred in February 2008, prior to the commencement of the current Employment Act. At that time, the repealed Employment Act governed employment relationships and did not require a disciplinary hearing before termination, nor did it provide remedies for unfair termination. The court held that the remedies sought by the claimants were based on a statute that was not in force when their causes of action accrued, and there was no provision for retrospective application of the new Act. Consequently, the court lacked jurisdiction to grant the remedies sought, and the claims were dismissed.
Court Disposition
suit dismissed
Orders
- The suit is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA
AT NAIROBI
CASE NO 468N OF 2009
HENRY OVIYO & 4 OTHERS.......................CLAIMANT
VERSUS
NAIROBI BOTTLERS LTD..................RESPONDENT
JUDGMENT
1. This suit was consolidated with cause numbers 511N of 2009, 1192 of 2009, 1193 of 2009 and 1196 of 2010. This judgement dispose of all the suits consolidated with this suit. The claimants were former employees of the respondent working in various capacities. They claimed to have been unfairly terminated by the respondent.
2. According to Mr Kevin Adero Opiyo, on 19th February, 2008 they reported to work and were told they were needed for a disciplinary hearing before the disciplinary committee. They reported and were each asked what they know about fuel siphoning. According to them, they were not given a chance to prepare nor call witnesses.
3. According to Mr Opiyo, they wrote statements over the accusations and their services terminated thereafter. They were then arrested and taken to custody but later released without any charges preferred against any of them. He further stated that they were shown photographs of people siphoning fuel but according to him, the photographs were not clear. One could not identify the number plate of the vehicles in the picture.
4. Upon termination, the respondent paid them one month’s salary in lieu of notice and for the days worked. They were further paid their provident fund contributions. The respondent though filed a defence to the claims, did not call any witnesses at the trial. The claimant’s herein were dismissed in February, 2008. The applicable law then was the repealed Employment Act (cap 226).
5. Under that Act, there was no requirement that before an employee’s service is terminated there should be a disciplinary hearing. A contract of employment then could be terminated by simply issuing one-month’s notice or by giving one month’s wages in lieu of notice. The remedy for unfair termination of service is only found in the present Employment Act. The Act came into operation on 2nd June, 2008 and there is no provision for retrospective application.
6. In the circumstances, the court does not have jurisdiction to award the remedies sought by the claimants since they are based on a statute that did not exist at the time their causes of action accrued.
7. The suit is therefore dismissed with no order as to costs.
8. It is ordered.
Dated at Nairobi this 20th day of July, 2018
Abuodha J. N.
Judge
Delivered at Nairobi this 20th day of July, 2018
Abuodha J. N.
Judge
In the presence of:-
...........................................for the Claimant
.....................................for the Respondent