An action for compensation for any loss suffered in an illegal strike could be brought against trade unions

Headnote: The unique issue arising in the case concerned the liability of trade unions for damages arising out of an unprotected strike held by its members. The court not only examined to distinguishable cases from the High Court but also precedence from South Africa. The court of appeal concluded that under section 12 of the Employment and Labour Relations Court Act, the Employment and Labour Relations Court had exclusive original and appellate jurisdiction to hear and determine, among other disputes, disputes between an employer and a trade union. The section also clearly indicated that a claim, complaint or an application could be lodged against a trade union. It followed that the reliefs available under section 12(3) would be available to an employer who sued a trade union. An action for compensation for any loss suffered in an illegal strike could be brought against trade unions.

Sotik Highlands Tea Estate Ltd v Kenya Plantation and Agricultural Workers Union (Civil Appeal 8 of 2017) [2024] KECA 258 (KLR) (8 March 2024) (Judgment)
Neutral citation: [2024] KECA 258 (KLR)
Court of Appeal at Nairobi
F Sichale, P Nyamweya & WK Korir, JJA
March 8, 2024
Reported by Robai Nasike Sivikhe
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Labour Law– labour relations – trade unions – duty of a trade union during a strike – unprotected strikes – where a trade union is being held liable for damages arising out of an unprotected strike – whether trade unions could be held liable for damages arising out of an unprotected strike, occasioned by employees, who were its members – Employment and Relations Court Act, section 12
Labour Law – employment relationship – employer-employee relationship – termination of an employment relationship – procedure for termination of an employment relationship – disciplinary proceedings against employees who participated in an unregulated strike – whether an employee could contact disciplinary proceedings against employees who participated in an unprotected strike – whether the procedure adopted by the employer in reaching the decision to dismiss the employees, and the communication of that decision to the employees was fair and in accordance with justice and equity – Constitution of Kenya, 2010, articles 47 and 50 (1); Employment Act, sections 41 and 46; and Labour Relations Act, sections 76, 78 and 79.

Brief Facts
At the Trial Court, the main issues that arose in the dispute between the appellant and respondent, who were employer and employee, were: whether the termination of the employment of the respondent was wrongful, unfair and unlawful; whether the respondents was entitled to the relief sought; and the issue of costs. The trial court found that even though the grievants were involved in an unprotected strike, the same was prompted by the methodology and communication strategy of the appellant. The trial court proceeded to hold that there was a lapse in the procedure adopted by the appellant in the dismissal of the grievants hence their termination was wrongful, unfair, unprocedural and unlawful. On the second issue, the trial court took into consideration the grievants’ contributory faults leading to their termination. The court considered the fact that the dismissal of the grievants had not followed due process and awarded them their unpaid salary for May 2012, one month’s salary in lieu of notice and terminal benefits. The grievants were also ordered to yield vacant possession of the appellant’s houses. On the issue of costs, the trial court ordered the parties to bear their own costs of the proceedings.
Aggrieved, the instant appeal was instituted on grounds that the trial court erred in holding that there was a lapse of procedure by the appellant and in finding that termination of the employees was unlawful. According to the appellant, the trial court did not conclusively address the issue of illegal and unprotected strike pointing out that under section 80 of the Labour Relations Act, the appellant was justified to fire the employees who had participated in an unprotected strike. The appellant submitted that they followed the due process and procedure and that the trial court erred in finding that the appellant invoked the ultimatum principle in dismissing the employees. According to the appellant, the trial court erred in placing a high burden of proof on the appellant with respect to the show cause letters and disciplinary proceedings.

Issues
  1. Whether an employee could contact disciplinary proceedings against employees who participated in an unprotected strike.
  2. Whether the procedure adopted by the employer in reaching the decision to dismiss the employees, and the communication of that decision to the employees was fair and in accordance with justice and equity.
  3. Whether trade unions could be held liable for damages arising out of an unprotected strike, occasioned by employees, who were its members.
Held
  1. The grievants’ agitation through labour unrest was not in compliance with sections 76, 78 and 79 of the , which in general, regulated strikes. Those provisions of the law provided the procedural requirements for strike actions, such as prior conciliation and strike notification. The grievants did not adhere to those requirements and the end result was inevitably an unprotected strike. Since the grievants were engaged in an unprotected strike, it followed that under section 80 of the , the grievants were deemed to have acted in violation of their contracts of employment and were liable to disciplinary action and forfeiture of any payment and any other benefit under the during the two-day strike period. The grievants having participated in an unprotected strike were stripped of the protection accorded by section 46(i) of the Employment Act to employees who participate in a lawful strike. Therefore, the appellant was entitled to initiate disciplinary proceedings and the reason for dismissal was valid.
  2. Dismissal from employment could only be said to comply with the law where the procedure adopted afforded the individual employee an opportunity to know the allegations leveled against him or her and gave the employee a chance to respond to the allegations by being offered an opportunity for a fair hearing. Such a process had to adhere to the principles of fair administrative action and fair hearing under articles 47 and 50(1) of , and the various provisions of the Employment Act, in particular, section 41.
  3. The appellant resorted to a collective or blanket disciplinary procedure against the strikers. In such a situation it could not be said that all the grievants were present at the site where the notices were read out. For instance, CW1 who told the trial court that he was testifying on behalf of all the other grievants denied awareness of the disciplinary proceedings. His testimony was that his dismissal letter was handed over to him by his son. Notwithstanding the fact that the grievants had participated in an unprotected strike and the appellant was entitled to dismiss them, the procedure adopted was devoid of the principles of justice and fairness. Whereas the reasons for termination were ripe, the procedure engaged in the dismissal of the grievants did not pass the constitutional tests of fair administrative action and fair hearing as well as the procedure enshrined in the Employment Act. Even though termination of the grievants’ contracts of employment was available to the appellant as a solution to the unprotected strike, the appellant was still obligated to comply with the due process legislated in the Employment Act. The procedure adopted did not live to the expectation. Ultimately, the termination of the grievants by the appellant was unfair and unlawful.
  4. Whereas section 80 of the limited compensation suffered in an unprotected strike or lock-out to denying an employee any payment or other benefit under the Employment Act for the period the employee participated in the strike, section 12 of the gave the Employment and Labour Relations Court power to order an award of compensation or of damages in any circumstances contemplated under the Act or any written law. The Court could also provide any other appropriate relief as it would deem fit to grant. Limiting the employer to the remedies available under section 80 of the without considering the import and wide options available under section 12 of the would not only result in injustice to employers but also encourage unregulated strikes.
  5. Under section 12 of the , the Employment and Labour Relations Court had exclusive original and appellate jurisdiction to hear and determine, among other disputes, disputes between an employer and a trade union. The section also clearly indicated that a claim, complaint or an application could be lodged against a trade union. It followed that the reliefs available under section 12(3) would be available to an employer who sued a trade union. An action for compensation for any loss suffered in an illegal strike could be brought against trade unions.
  6. For a claim by an employer against a trade union to succeed, the employer must first prove that the strike was unprotected; second that the damages suffered were as a result of the unprotected strike; and third, that the trade union was complicit in the strike either by calling for the strike or participating in it.
  7. In the event of an unprotected strike, an employer could, where the employees cause destruction or other losses, sue for damages. If the employees’ trade union was involved in the prohibited strike, damages could be recovered from the union. However, as is required in any claim for damages, liability had to be established through adduction of evidence. The actual damage or injury caused to the employer must be proved. Above all, there should be nexus between the damage and the union for without such connection, any loss suffered by the employer could not be attributed to the union.
  8. There was no direct evidence linking the respondent to the strike by the grievants. The grievants, on their own motion moved to engage in the strike independent of their trade union which only came in after the grievants had boycotted work. The strike was spontaneous and not within the control of the respondent. The respondent’s participation or contribution was after the strike and was geared towards finding a solution to the unrest. The appellant had not established a link between the damages allegedly incurred and the respondent. There was no justification established for the trial court to allow the appellant’s counterclaim.
  9. It was upon the appellant to prove its counterclaim but it failed to do so. He who alleges must prove. Therefore, not every claim that was not opposed had to succeed. The trial court did not err in its dismissal of the unopposed counterclaim.
  10. Despite the trial court finding that the there was an illegal industrial action by the grievants, it also made a finding that the termination of their employment contracts was unfair and unprocedural. The remedies available for wrongful and unfair termination were provided at section 49 of the Employment Act. The reliefs under section 49 of the were discretionary in nature.
  11. In order for the Appellate Court to interfere with remedies awarded by the Employment and Labour Relations Court, an appellant had to question the exercise of discretion by the trial court. The appellate court ought not to interfere with the exercise of such discretion unless it was satisfied that the judge misdirected himself in some matter and as a result arrived at a wrong decision, or that it be manifest from the case as a whole that the judge was clearly wrong in the exercise of discretion and occasioned injustice. There was no reason to interfere with the trial court’s exercise of discretion.
  12. With regard to the award of the salary for the month of May 2012 to the grievants, it was evident that the respondent pleaded for the same under Part 4.2 of the Amended Memorandum of Claim. The appellant on its part denied the allegations at Paragraph 20 of their Amended Memorandum of Defence and Counterclaim. However, no evidence was adduced in support of the position adopted by the appellant. The appellant simply made a denial of the respondent’s claim. If indeed the salaries had been paid, why were there no payment vouchers or any other form of proof of payment adduced as evidence? It had not been demonstrated by the appellant that the awards made by the trial court were made injudiciously and there was no reason to interfere with the discretion of the trial court.
  13. The appellant claimed that the judgment of the trial court was incomplete as the court issued an order directing the Commissioner of Labour to compute amounts payable to the grievants. Judgments should be complete. The boundaries within which the Commissioner of Labour was to act were defined under the orders of the judgment which required the Commissioner to calculate the grievants’ salary for the month of May 2012, one-month salary for unlawful termination and the terminal dues uncollected at the time of termination. Hence the impugned judgment was precise, unambiguous and complete and the order was merely meant to facilitate the realization and execution of the judgment.
  14. The norm with regard to costs was that they follow the event. That was so, unless the court for good reason otherwise order. In the appeal, no reason was advanced as to why costs should not follow the event. The appeal was without merit. It followed that the appellant should meet the costs incidental to the appeal.
Appeal dismissed with costs to the respondent.


Kenya Law
Case Updates Issue 045/23-24
Case Summaries
CRIMINAL PRACTICE AND PROCEDURE Factors to consider before reducing the minimum mandatory sentence under the Sexual Offences Act

Headnote: The main issue in the appeal involved the reduction of the mandatory sentence imposed on the accused. The court found that the case was a fit case to depart from the statutory minimum sentence which prescribed fifteen (15) years imprisonment. That was because of the extreme youthfulness of the appellant when he committed the offence. He was twenty years old at the time. While legally an adult, judicial notice was taken of the fact that, as an emerging adult, his “hot cognition” – the decision-making neural pathway in an emotionally charged situation that could result in an outcome with a high risk or a high reward - was different than that of fully-transitioned adults. There was a relatively small difference in age between the appellant and the survivor – three years since the survivor was seventeen and the appellant twenty years old at the time. In addition, the crime was not committed with the use of force, menaces or in any other depraved manner.

Masinde v Republic (Criminal Appeal 202 of 2019) [2024] KECA 212 (KLR) (29 February 2024) (Judgment)
Neutral citation: [2024] KECA 212 (KLR)

Court of Appeal at Kisumu
HM Okwengu, HA Omondi & JM Ngugi, JJA

Reported by Robai Nasike Sivikhe

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Criminal practice and procedure – appeals – appeal against sentence – appeal against the mandatory sentence of 15 years under the Sexual Offences Act – extenuating circumstances to consider when reducing a mandatory sentence – where the age difference of the accused and victim was small – where the court considered the circumstances surrounding the crime – whether there were extenuating circumstances that would compel the court to consider in reducing the mandatorily prescribed sentence imposed on the appellant

Brief Facts
At the trial court, the appellant was convicted of the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act. He was sentenced to fifteen (15) years imprisonment, the mandatory statutory minimum under the Sexual Offences Act. The High Court upheld both the conviction and sentence.
The appellant appealed only against sentence. In support of his appeal against sentence, the appellant argued that the law, as interpreted, allowed courts to depart from the statutory minimums in the Sexual Offences Act and urged the appellate court to do so in his case for four related reasons: First, that he was very young when he committed the offence because he was only twenty (20) years old; Second, that he was a first offender; Third, that he had been in prison for more than ten years already and he was fully rehabilitated; and Fourth, that he had a wife and three children at home whom he would like an opportunity to go take care of. Additionally, the appellant urged the Court to take into account the time he was in custody during the pendency of his trial.

Issue:

  1. Whether there were extenuating circumstances that the court would consider in reducing the mandatorily prescribed sentence imposed on the appellant.

Held:

  1. 1. A second appeal court, the Court of Appeal’s jurisdiction was limited by dint of section 361(a) of the Criminal Procedure Code to deal with matters of law only and not to delve into matters of fact over which there were concurrent findings of the two courts below. The instant appeal fell within the Court’s consideration owing to the shift in Kenya’s jurisprudence on the imposition of mandatory minimum sentences prescribed in the Sexual Offences Act. That shift amounted to a matter of law and, consequently, within the Court of Appeal’s remit.
  2. Mandatory sentences in the Sexual Offences Act were found to be unconstitutional to the extent that they deprived the sentencing court of the opportunity to consider the aggravating and extenuating factors and the individual circumstances of each convicted person before pronouncing sentence. The judges pegged the unconstitutionality on the statutorily- imposed inability of a judicial officer to exercise discretion to impose an appropriate sentence after taking into account the circumstances of each case and the mitigation offered by the convicted person.
  3. Taking into consideration all the extenuating and aggravating factors in the instant case, while acutely aware of the intrinsic seriousness of the offence the appellant committed, it was a fit case to depart from the statutory minimum which prescribed fifteen (15) years imprisonment. That was because of the extreme youthfulness of the appellant when he committed the offence. He was twenty years old at the time. While legally an adult, judicial notice was taken of the fact that, as an emerging adult, his “hot cognition” – the decision-making neural pathway in an emotionally charged situation that could result in an outcome with a high risk or a high reward - was different than that of fully-transitioned adults. There was a relatively small difference in age between the appellant and the survivor – three years since the survivor was seventeen and the appellant twenty years old at the time. In addition, the crime was not committed with the use of force, menaces or in any other depraved manner.
  4. The appellant was in custody for part of the time during the pendency of the trial. All considered, the period the appellant served in custody – just shy of ten years - was sufficient time for penance and rehabilitation for his offence. Consequently, the appeal against sentence was allowed to the extent that the Court of Appeal set aside the sentence imposed on him. It was substituted thereto with an imprisonment term equal to the time the appellant had served. The appellant, shall, therefore, be released from prison forthwith unless he was otherwise lawfully being held.

Appeal allowed.

CRIMINAL PROCEDURE

The status of a single judgment delivered with regard to several appeals, without consolidation of the appeals

Headnote:the case raised the issue of the propriety of a single judgment being made against several appeals, without consolidation of those appeals. The court held that if the first appellate court had issued a single judgment, where all issues in each appeal were exhaustively addressed so that it could be seen to have complied with all the requirements of section 169 (1) for each case, the Judge would not have been faulted for delivering such single judgment. However, having failed to comply with the strictures of section 169 (1), the first appellate court misdirected itself by failing to render decisions in the 25 appeals as required by law. Consequently, to the extent that the judgment did not determine any of the appeals, it was rendered a nullity.

Republic v Pepela & 24 others (Criminal Appeal 64 & 66 - 89 of 2016 (Consolidated)) [2024] KECA 204 (KLR) (1 March 2024) (Judgment)
Neutral citation: [2024] KECA 204 (KLR)
Court of Appeal at Mombasa
AK Murgor, M Ngugi & GV Odunga, JJA
Reported by Robai Nasike SivikheReported by Robai Nasike Sivikhe
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Criminal procedure – – appeals – second appeals – scope of a second appellate court – grounds of appeal – claims that grounds of appeal raised matters of law – claims that the first appellate court had failed to re-evaluate evidence produced, on appeal - whether the grounds of appeal raised matters of law that ought to be determined by the Court of Appeal as a second appellate court – whether the High Court, as a first appellate court had discharged its duty to re-evaluate evidence provided and arrived at an independent conclusion
Criminal procedure – judgments – content of judgments – mandatory contents of a judgment – delivery of a judgment where the appeals were heard without consolidation – whether it was proper to deliver a single judgment for appeals that were heard separately, without consolidation – Criminal Procedure Code, CAP 75, sections 116 and 169 (1)
Criminal procedure – appeals – second appeals – directions of a second appellate court upon hearing an appeal – orders for rehearing – conditions to be met before a second appellate court makes an order for rehearing – whether it was proper to order a rehearing of the appeals at the first appellate court

Brief facts:
The instant appeal arose from a decision of the High Court, as a first appellate court, in respect of 25 appeals that were filed by the respondents. The grounds of appeal in Mombasa Criminal Appeal No 64 of 2016 were to the effect that the 1st appellate court was wrong in law in: rendering a single judgment in 25 separate appeals that were not consolidated; in failing to deliver a proper judgment in law and therefore an order for re-hearing of the respective appeals to issue; in exercising his powers under section 179 of the Criminal Procedure Code, whilst he had made a finding that the charge was defective; in misinterpreting the provisions of section 2 of the Kenya Defence Forces Act on who was “an enemy of the state”; in misinterpreting the provisions of section 74(2) (e) of the Kenya Defence Forces Act on desertion; in failing to find that the offence of desertion was a continuing offence, and wrongly finding that the respondents were absent without official leave (AWOL); in failing to consider section 310 of the Kenya Defence Forces Act relating to the transitional and savings provisions; in contravening the provisions of section 169 of the Criminal Procedure Code in failing to render reasoned judgments in any of the appeals; in misinterpreting the provisions of section 75(1) of the Kenya Defence Forces Act; in failing to consider the appellant’s submissions in all the respondents appeals and in computing the sentence to include the period served in remand since the time spent in remand custody did not amount to sentence served in law.
In Mombasa Criminal Appeals No 66 - 89 of 2016, the grounds of appeal were that the learned judge erred in law: in failing to render a judgment in the High Court appeals and therefore a declaratory judgment be granted by the instant Court that there was no judgment in the matters; in failing in its duty to re-evaluate and re-examine the court martial findings thereby arriving at a wrong decision and that there being no judgment in the different appeals, an order for re-hearing of the 25 appeals to issue.

Issues:

  1. Whether the grounds of appeal raised matters of law that ought to be determined by the Court of Appeal as a second appellate court.
  2. Whether the High Court, as a first appellate court had discharged its duty to re-evaluate the evidence provided and arrived at an independent conclusion
  3. Whether it was proper to deliver a single judgment for appeals that were heard separately, without consolidation
  4. Whether it was proper to order a rehearing of the appeals at the first appellate court

Held:

  1. 1. In a second appeal, “Matters of law” constituted: the technical element: involving the interpretation of a constitutional or statutory provision; the practical element: involving the application of the Constitution and the law to a set of facts or evidence on record; and the evidentiary element: involving the evaluation of the conclusions of a trial Court based on the evidence on record.
  2. The appeal was concerned with matters of law. For instance, questions for interpretation of section 2, section 74(2) (e) and section 75(1) of the Kenya Defence Forces Act among other provisions had been posed and the Court of Appeal was required to construe them. Since the interpretation of statutory provisions, which were considered technical elements, were matters of law, then the interpretation of the stated provisions being matters of law would render the appeal eligible for hearing by the instant Court.
  3. Where a complaint had been raised that the High Court failed in its duty to re-evaluate the evidence or failed to consider the evidence afresh and by so doing, failed to arrive at its own independent conclusions, then without question, a matter of law would be said to have arisen, that would warrant ventilation before the appellate Court. Since there was a question of dereliction of duty by the High Court to evaluate the evidence on the record, the instant matter was a matter of law that fell squarely within the mandate of the Court of Appeal’s jurisdiction as a second appellate court. Hence, the preliminary objection failed.
  4. The appeals, though similar, raised issues that differed when considered within the context of each case. Yet, a consideration of the impugned judgment showed that it did not set out, the point or points for determination, the decision thereon and the reasons for the decision, in all the cases. There was no consideration of the facts and evidence adduced in each appeal, but more profoundly, notwithstanding a judgment was delivered, there was no determination of each appeal, with the result that no judgments were delivered in each case.
  5. If the first appellate court had issued a single judgment, where all issues in each appeal were exhaustively addressed so that it could be seen to have complied with all the requirements of section 169 (1) for each case, the Judge would not have been faulted for delivering such single judgment. However, having failed to comply with the strictures of section 169 (1), the first appellate court misdirected itself by failing to render decisions in the 25 appeals as required by law. Consequently, to the extent that the judgment did not determine any of the appeals, it was rendered a nullity.
  6. A first appeal always proceeded by way of re-hearing based on the evidence on record and an appellant was therefore entitled to expect that the first appellate court would go beyond a mere rehashing of what was on record or a repetition of the findings of the trial court. It was required to and must be seen to have, consciously and deliberately subjected the entire evidence to thorough scrutiny so as to arrive at its own independent conclusions on the factual issues in contention, and to determine on its own, the guilt or otherwise of the appellant. The only limitation to its task was that it had to remember that it was without the advantage enjoyed by the trial court, of seeing and observing the witnesses as they testified, for which it must make due allowance.
  7. The 25 appeals arose out of different court martial verdicts against each of the respondents delivered on different dates. Each respondent was found guilty and sentenced to life imprisonment in their respective case. It was also apparent from the record that each case arose from different transactions and was based on its own set of facts, in that, the alleged offences covered different periods and occurred on different dates; the evidence adduced differed from one case to another, with each trial being conducted separately and individually, where after a decision was rendered in each case.
  8. When the first appellate court’s judgment was considered alongside the evidence on record, it led to the conclusion that the judge did not re-evaluate the record in each of the respondents’ appeals. That was because:
    1. No reference at all was made in the judgment to any of the verdicts, nor were any of the respondents’ cases considered in relation to their appeals. Essentially, the purport of the 1st appellate court’s judgment could not be discerned.
    2. No facts or evidence were disclosed. More particularly, though the record showed that in each case different witnesses testified, and there was documentary evidence adduced before the court martial by both the prosecution and the defence, no reference was made to that in the judgment, with the result that, no re-analysis or re-examination of the evidence was undertaken.
    3. The judgment did not show that the first appellate court weighed out the prosecution evidence against that of the defence to arrive at its independent conclusion in each case.
    4. Notwithstanding the different verdicts in respect of each respondent, there was nothing in the judgment pointing to an analysis of the concerned verdict, to determine whether the High Court found that the court martial properly applied the law, and reached the right conclusion in respect of each respondent’s guilt.
  9. The first appellate court failed in its duty to re-evaluate the evidence on the record in each of the respondents’ appeals so as to reach its own independent conclusions. As a result of the glaring deficiencies, it was necessary to declare the 1st appellate court’s judgment null. Since the judgment was a nullity, the question of whether the prosecution proved its case to the required standard fell away, and there was no need to determine the issue.
  10. Whether or not to order a re-trial or a re-hearing of the appeal depended on the facts and circumstances of each case. A re-hearing would be ordered where the interests of justice so demand. Among the factors to be considered include whether a re-trial would occasion the appellant an injustice, whether there were illegalities or defects in the original trial, the length of time that had elapsed since the arrest and trial of the appellant, whether the mistake necessitating rehearing was of the prosecution’s making or the court’s, and availability of witnesses, among others.
  11. A rehearing was necessitated by the failure of the High Court to render judgments in each of the respondents’ appeals as required by law. Additionally, since the appeals arose from court-martial proceedings, a rehearing would involve the re-assessment and re-evaluation of the evidence on record, and therefore the question of attendance by witnesses did not arise. The order that best lends itself to the circumstances, was a rehearing of the appeals against the court martial verdicts in each of the respondents’ cases. Consequently, the appeal was allowed pursuant to section 361(2) of the Criminal Procedure Code.

Appeal allowed.

Orders

  1. The judgment dated August 21, 2018, was declared a nullity;
  2. The appeals specified were remitted back to the High Court for rehearing by another judge other than the judge that heard the appeals; and
  3. The re-hearing of the appeals should be expedited and determined on a priority basis, having regard to the period that would have so far elapsed.