Labour Law Notes General

LABOUR LAW – By Dennis
Kiura
1.0 INTRODUCTION TO LABOUR LAW
DEFINITION OF LABOUR LAW

Labour Law deals with persons in capacity of workers generally in the labour law
market. The relationship involves two parties at a basic level so that it can be termed as
a relationship governing the employer and the employee.
Definition at a basic level is that an employee contracts to render services for a reward
and employer contracts to pay that reward for work done.
Often an employee is referred to as a “Worker”. However the term worker is not used
in labour law in “Marxian” sense but in the “capitalistic” sense.
Labour law is also used interchangeably with Industrial Law. They are however
different in that:-
1. Industrial law covers employer-employee relationship more adequately.
2. Industrial law is wider in application as it involves studies like taxation,
Industrial property and social security not falling within labour law.
3. Labour law is a more preferred terminology.
Labour law refers to a body of legal rules which regulates the relationship between:-
a. an employer and a worker
b. an employer and workers
c. employer(s) and trade union representing workers
d. employers’ organization and trade unions
e. the state, employers, workers, unions and employer organizations
SCOPE OF LABOUR LAW

Labour Law is defined in part by its subject matter and in part by intellectual tradition.
Intellectual tradition is the heritage of Prof. Otto Khan Freund and the Lord
Wedderburn. The subject matter of labour law consists of rules that govern employer-
employee relationship.
A broader perspective however would see labour law as a normative framework for the
existence and operation of all the institutions of labour market i.e. Business Enterprise,
Trade Unions, employers’ association and state in its capacity as regulator and
employer. As Prof. Hepple states,
“Labour law starts from the idea of subordination of individual worker to
capitalist enterprise. That it is above all the law of independent labour (self
employed) and it is specific to categories of economic relationships which
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involve exchange of personal services for remuneration. Labour law is concerned

with how the relationships are constituted and regulated.”
Its scope accordingly extends from the individual to collective, from contract of
employment to relationships between institutions of organized labour and capital and
to conduct and resolutions of conflicts between them.
The intellectual tradition alluded to herein before views labour law as a unified
discipline which has outgrown its diverse origin in the law of obligations and in
regulating intervention of the state. It is seen as one which spurns the divide between
common law and legislation and that between private and public law.
The view that labour law is more than the sum of its parts is derived from writings of
German jurists at the turn of 20 th century, who saw the subject as embodiment of social
policy in action. This view, which at its broadest implies that Labour Law shall embrace
sociology, social policy and theory of business organization came to influence the study
of Labour Law in Britain in 1930 through the writings of Sir Otto Khan. He was a judge
in Weimer in the Republic of Germany.
Sir Otto Khan confronts the conception of Labour Law and stressed the function of
interdependence of the positive law with extra-legal resources of regulation in particular
collective bargaining. The perspective remains valid today notwithstanding the
enormous changes that have taken place in the term and content of Labour Law since
Sir Otto Khan elaborated the subject in 1950s.
His writings have impact on scholarship, Courts and formulation of public policy on
labour relations on law. Although the notion of labour law as normative framework of
institutions in labour market has commanded respect in recent times, other closely
related areas of law are important determinants of labour market outcome.
The scope of Labour Law is therefore wide and cuts across traditional groupings of the
legal subjects, for instance;
1. Understanding of social security law is important in appreciation of aspects of
employment relations e.g. social security contributions on earnings of employee
and entitlements of unemployed and those seeking work to receipt of social
security benefits.’
2. The same applies to law of taxation which has major impact on employment
relationship through the incidence of income tax and also occupational pension
rights.

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3. It intersects with Company Law for the reason that some awareness of Company
Law principles is central to an understanding of legal nature of business
enterprise.
4. The Law of Contract which elucidates nature of employer-employee relationship
5. The Law of Tort as it helps to determine liability of Civil wrong doing at work
place in the employer-employee relationship.
6. The constitutional law is labour relations are recognised under the Bill of rights
at Article 41 as one of the fundamental freedoms.
DISTINCTIVE FEATURES OF LABOUR LAW

With respect to English Labour Law the worker is taken as an individual and taken to
contract independently. Over the years that position has been weakened because of
eventual growth of employer and employee associations almost to a position of
monopoly dominance.
The position of labour unions has grown at the expense of the worker’s individual
status and are now recognized as employee associations (individual to collective
agreement).
In 18th and 19th Century there was dominance of Laissez Faire policy which was
watered down in early 20th century even in the U.K. where it was argued that there
should be a strong state intervention in the economy. With the collapse of Soviet Union
in 1990s and emergence of Unipolar Republics, 21st Century, illustrates the re-
emergence of the Laissez Faire Policy.
In Kenya legal control of labour relations is to be found in the Labour Relations Act of
2007, Labour Institutions Act of 2007 and the Employment Act of 2007.
In Britain, it is adequately covered by a host of statutory provisions and Common Law

provisions where Statute is silent. It is for that reason that Brown in his book “British
Industrial Relations” while commenting on the Industrial Relations states:
“When British Industrial Relations are compared to the others they stand out
because they are so little neglected by the law.”
AREAS WITHN PRECINCTS OF LABOUR LAW

1. Relationship between employer and employee – employment relationship.
2. Collective bargaining, trade unions and employers’ organisations and the legal
effect of collective agreements – collective bargaining.

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3. Law concerning strikes, walk outs and industrial conflicts (trade dispute
resolutions) – industrial actions.
4. Law about status and membership of trade unions which is intertwined with the
Law of Industrial conflicts – membership and status of trade unions.
HISTORICAL BACKGROUND AND DEVELOPMENT OF LABOUR LAW IN

KENYA
The theme historical development of labour law is that of movement from non-
intervention to the modern collective bargaining. In Britain there was what Professor
Otto Khan Freund describes as a situation of non-intervention by the law in instances of
trade unions not employment contracts either.
The reason behind that was that individual employment contracts were not viewed as
specialized types of contract but ordinary common law contracts. Collective bargaining
was extra legal and was not controlled by statute. Collective bargaining on
employment was not enforceable in law.
In the 19th Century’s first half, judicial legal intervention was equivalent to trade
unionism and in that first half, judges declared trade unions and their activities to be
criminal.
The enactment of labour statutes of 1859, 1871 and 1875 from which our labour laws are
heavily drawn was of some importance in checking that situation. They took away the
criminality the judges had attributed to trade unions. Judges belonged to middle-class
and so when the law took away the criminal liability, they brought in civil liability.
Prof. Khan indeed argues that the courts, until World War I reflected the attitude of the
middle class.
At a conference in 1920 of International Labour Organization, Lord Justice Scrutton

confirmed that judges belonged to a certain class i.e. employers’ class. Indeed the years
following, the statutes removed the criminal liabilities imposed by common law on
Trade Unions.
The Courts turned to civil liability. It is much later that it came to be appreciated that
the law of a workman to strike was essential for the process of collective bargaining for
where statutes fail to create enforcement methods this remains the only self-help
method in the hands of employee.

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Modern labour relations in Britain:

Regulated by the 4 statutes above-mentioned, legal intervention slowly started
emerging from 1859, 1871 and 1875 as supplemented by Industrial Relations Act of 1971
and Trade Unions and Labour Relations Consolidation Act of 1994. Early Common Law
was harsh as it provided Criminal sanctions against the worker. The employer was
treated as having proprietary rights in his workers. This was explained by feudalist
state that existed in England.
The modern law of employment emphasizes the personal revolutionary exchange of

freely bargained promises between two parties equally protected by law and that in
modern context is emphasized by the existence of legal and statutory provisions of
trade unionism and bargaining.
According to Lord Wedderburn the older common law which emphasized individuality
necessarily ignored the economic reality behind it. i.e. employer-employee relationship
was indeed such that they were not equal even in their ability to go to law. Lord
Wedderburn however, argues that for all archaic qualities, the individual employment
contract remains a useful and powerful legal device.
Kenyan case:
In a developed capitalist society, the terms of employment of a labourer are defined by
ordinary economic laws of supply and demand i.e. remuneration is defined by the
market situation. In the pre-colonial era such terms of labour were unknown. Generally
the position of labour will depend on state of a society at a particular industrial epoch.
So that in a feudalist state the worker was not able to bargain because the relationship
was that of a “master” and a “slave”.
Before the advent of colonial government in Kenya, Africans lived in a community

separated from western world and culture. Their mode of lifestyle was simple, self
sustaining and sufficient. At interpersonal and inter-class level, the system was barter.
The African mode of communal living was that Africans did not need to work.
Most communities did not have a central political authority except the Buganda and
Wanga. It was in those communities where there was employer-employee relationship
which was limited to running the body politic. Other communities were non-
centralized.
Those are the communities that colonial government found on the ground. The main
purpose of settlers was to exploit the natural resources in the economy for production
and sale both at home and in colonies. The easiest way was to use African labour. This

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wasn’t forthcoming because the Africans did not see the need to work. Consequently,
the settlers threatened to go back if the colonial government did not secure labour for
them. The argument was that colonial authorities had induced them to come and work
in the colony.
Espelth Huxley’s book ‘Whiteman’s country’, he thus observed that:

When Lord Delamere set his foot in 1887 in Kenya Queen Victoria was in her
thrown and Britain at the height of imperial war. The British quite indeed
seemed unassailable and if not immortal certain to endure for centuries. The land
to which he came (Lord Delamere) was per European standards primitive. It had
scattered people with separate and mainly hostile tribes and who were nomadic
and ignorant of the outside world. The intricate social mechanism underlying
tribalism that enabled these groups to maintain a stable life were unknown.
When Sir Charles Elliot who was the commissioner from 1900-1903, wrote that
Europeans were not destroying any old or existing systems but simply introducing
order to a black & brutal barbarism, he was echoing a belief held by all Europeans in the
protectorate at that time.
The term settler became a term of abuse projecting attitude of arrogance and brutal
individuals who in pursuit of wealth annexed large tracks of land from rightful
individuals. They were only after wealth and profits not caring at all about Africans.
With respect to land the only hope for colonial authorities was to fill the ‘empty spaces’
with settlers who would develop the land and other infrastructure. The colonial
authority was thus to encourage the settler to move into the region. It also ensured ‘idle’
natives indeed were employed cheaply. It was hoped that wheels of trade had been
started by employing natives and therefore supplying among them money to pay for
imported goods and taxes.
However African labour was not forthcoming. Two consequences then emerged
1) Recruitment of labour from outside the protectorate
2) To implement legal measures to ensure supply of labour
With respect to labour, the primary source was India for purposes of construction of the
railway line. In respect of legal measures, introduction was made of Colonial Land
Ordinance of 1915, Hut tax Regulations of 1901, East Africa Hut Tax Ordinance of 1903,
Hut & Poll Tax Ordinance of 1910 & Registration of Natives Ordinance of 1920. Initially
when the settlers came, the colonial government had to provide land. The 1915
Colonial Land Ordinance effectively ex-propriated land from the natives so that
Africans quite indeed became mere tenants in their own land at the will of the settlers

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i.e. labour to work the land. The taking of African land meant creating a landless people
who were forced to find other means of subsistence. Some had to sell their labour and a
potential labour supply was created.
Land alienation and effects on labour:

The 1902 and 1915 Colonial Land Ordinances facilitated acquisition of land by the
settler community and its gross effect was to create a landless group which was for the
reason of landlessness compelled to seek alternative means of subsistence in settler
farms.
By virtue of 1902 ordinance the doctrine of “vacant land” was applied to alienate land
held by African communities on grounds of vacancy. The 1915 ordinance took away all
Africans rights in land not taken by 1902 ordinance. The effect of the 1915 ordinance
was that all African Land was crown land but could be lawfully alienated by the
government. Although provision was made for native Reserves, these were insecure, as
they could be cancelled by the government if land was needed by the settlers.
In Wainaina –vs- Murito, CJ Burke declared that native reserves were public land and
therefore Africans were termed as tenants at the will of the settlers. The idea of absence
of private rights for Africans in land facilitated occupation of that land by settlers. The
dislodged Africans were forced to seek means of survival and the settlers were assured
a source of cheap labour.
Richard Wolff in his book “Britain in Kenya” states:

“Perhaps the most condemned summary of settlers situation from 1903 and after
appeared in a letter from the principal settlers to the governor, a Seidmann and
the letter stated ‘we must put on your Excellency that it would be grossly unfair
to invite settlers to this country as has been done and give him land under
conditions which force him to work and at the same time do away with the
foundation on which his enterprise and hope vest namely cheap labour.’”
As early as 1901 the government had passed tax regulations that every adult pays 3
rupees annually for the huts that he and his family occupied. Personal tax/poll tax was
also placed. The requirement that tax payment be in monetary terms necessitated
movement of natives in search of employment. The argument that tax was meant to
supply labour was justified by Prof Ghai. In 1908 the settler community requested the
colonial government to force more natives to pay hut taxes so as to enlarge supply of
labour (Bracket of persons liable to pay tax expansion is called tax base expansion).

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In 1910 Hut and Poll Tax Ordinance was passed empowering the government to
impose tax on a wider tax base hence forcing more Africans to go into labour market.
Those who failed to pay tax were rounded-up and forced to supply labour in white
farms without payment. A 15 year old was deemed an adult per that 1910 ordinance.
That did not solve the problem of labour. The Africans only worked enough to pay tax
and go back to their lifestyles. The colonial government changed style of taxation so
that tax would be collected during peak periods e.g. harvesting period.
Other than those direct modes of tax imposition there was forced labour but imperial
government was reluctant to sanction forced labour due to connotation of slavery that
had been abolished. Land was useless unless sufficient labour was supplied. The
success of British industry depended on availability of raw materials in the colonies. To
the settler community the colonial government had a duty to protect that industry.
In that going there was labour crisis between 1907 and 1909. In 1912 a labour
commission was appointed to look into labour situation. African interests were not
represented in that commission.
Labour crisis of 1907 to 1909:

The year 1908 marked the peak of settlement wave. The rise in white settlement brought
them problems, labour problems being the greatest. Settler farmers found it difficult to
get enough labour since there were about 2.5 million natives compared to about 1,000
settlers. The labour crisis was not due to lack of able-bodied persons but due to the fact
that an average native did not need to work for Europeans.
The basic questions that arose from the crisis were; how far was the colonial
government responsible for providing labour to enhance settler agricultural sector?
How was the government justified in persuading natives to work for settlers and what
steps if any were to be taken to encourage them to do so? In the authorities’ view, the
issue was one of economies. They argued that if settlers could not get labour they could
induce. To them labour variable was African labour not white labour.
The role of the settler was seen as that of a supervisor, manager and skilled expert. They
also argued that natives could not produce for the market. They took the position that,
if the country was to have European production so as to have economic balance, the
government had a duty to induce onward development by persuading Africans to work
for settlers. The government, it was argued, had the obligation to farmers because it had
invited the settlers to come into the colony and sink their capital and that the colonial
government had undertaken to provide them with land but the land was of no value
without labour force.

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Between 1907 and 1909 there was a labour crisis which was compounded by the fact
that state institutions had been directed from London that government officers should
not participate in recruiting labour. That was to be left for recruiters. There was no
communication between recruiters and thus it became impossible to relate between the
forces of demand and supply.
That dilemma is captured by the letter to colonial government by labour commission

which stated in part:
‘We recognize that forced labour cannot be carried on, but to advertise to natives
not to work if they wish, to the savage mind is a broad hint not to work.’
The labour commission of 1912 called evidence from settlers in exclusion of the
Africans. Its recommendations on how to resolve labour problems are summarized by
Prof. Okoth Ogendo in ‘Tenants for the Crown’ as follows:
1. A property tax imposed on all natives, be calculated on an estimate of which
each cultivates or value of stock, for agricultural and pastoral communities
respectively.
2. District commissioners be sent clear circulars directing them to assist in
recruitment of labour and if possible centres be set up all over the country to
coordinate the supply and distribution of labour.
3. Natives be allowed to squat with their families in European land in exchange of
labour.
The recommendations were not accepted in total by the government. The government
proposed an alternative method that would facilitate availing of information on where
labour could be obtained and where jobs were available. This was not a neutral position
as the government would have liked it to be viewed. This is because in the process of
availing information certain administrative units were used in labour recruitment
specifically headmen and chiefs. It was the use of these people that forced labour
emerged in this country.
With respect to legal measures taken, other than Crown Land Ordinance, there are
instructive ordinances;
1. Registration of Natives Ordinance of 1920 - The first registration ordinance was
promulgated in 1915 which required registration of natives who had come
forward for employment. The 1920 ordinance was to control native movement
and ensure labour control. The first ordinance facilitated process the second one
controlled the process. The 1915 never came into force as notice had never been
issued.

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In 1919, the settlers held a meeting calling for the implementation of the 1915
ordinance in a manner that would ensure continuous labour availability. It was
in line with this demand that the government promulgated the 1920 ordinance
with respect to ensuring continuous supply of labour. It dealt with the problem
of dissertation of labour. The ordinance sought to address this required a native
be registered and issued with a registration certificate (kipande system).
The ordinance was of importance to the settler community because Africans

lingered in their traditional way of life. After paying tax they went away. In
terms of the ordinance, dissertation of labour became a criminal offence
purnishable by heavy fines and imprisonment - this was cruel.
2. The second ordinance was Residents Native Ordinance of 1916 which was aimed
at supplementing the 1915 registration ordinance and to expedite flow of labour
from native areas to farm land as well as to industries.
The ordinance established and catered for settler-squatter relationship. Natives

on employment became squatters on settler farms. The ordinance spelt out terms
of relationship and ensured that the settlers got labour and retained it. The native
got a place on settler land to build and cultivate and was required to supply
labour in return i.e. master-servant relationship in feudalist societies.
Africans were expected to supply labour for six months a year and in return got
land. Despite all that, even if registration ordinance and native ordinance
secured labour, they did not secure sufficient labour. In the WWI the government
was persuaded to take more drastic actions to recruit labour.
In 1919 the Ainsworth circulars were issued. The first dated 23 rd October 1919
recommended PCs, DCs and Native authorities, that it was their duty to influence
labourers to turn up for work in settler farms. It issued further instructions to the effect.
1. Government officials must exercise every lawful influence to induce able bodied
persons to do labour in the field;
2. Native Chiefs and Elders must render possible assistance on the foregoing light.
3. DCs should organize labour recruitment meetings to which employers must be
invited and where amount, place, nature and payment of labour required was
to be explained.
4. Administrators must permit employers, to enter freely any native reserve to get
chiefs, headmen and native authorities for recruitment of labour.

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Though the circular was withdrawn later, Prof Okoth argues that forced labour
continued up to 1939. The cumulative effect of the circular, coupled with tax collection
was not simply flow of labour into European farms but in 1920s a steady and
increasingly by importance of badly needed revenue especially now that the Europeans
had resisted direct taxation.
Due to the connotations of forced labour that the circulars had, African population
protested against them but they were accepted by the colonial government. The church
or missionaries did not in principle oppose these circulars.
Archbishop Deacon Owen was a strong advocate of this approach saying that
compulsory labour should be used for at least 10 years to develop Africa. The
sympathizers the natives had were outsiders, mostly the labour office in Britain. The
labour party in Britain opposed these circulars seeing them as an attempt to reintroduce
slavery. Legislation followed to implement the circulars e.g. the Native Authority
Ordinance of 1921 was enacted to empower headmen to order natives to do compulsory
labour in public works. This was invariably so when they failed to turn up for work in
European farms. The argument was that if natives were forced to do public work
unpaid, it would encourage them to go for paid work. The result was that by 1930
African labour was flowing into desired areas.
It is the development of the native working class that the British government imported
the British labour laws which is a heavy reflection of the labour relations statutes of
1859, 1871 and 1875.

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2.0 SOURCES AND INSTITUTIONS OF LABOUR LAW
SOURCES OF LABOUR LAW

1. Constitution of Kenya, 2010
Article 41 deals with labour relations. Under Article 41(1), every person has the right to
fair labour practices. Under Article 41(2) every worker has the right to:
• Fair remuneration
• Reasonable working conditions
• Form, join or participate in a Trade Union
• Go on strike
Under Article 41(3) every employer has a right to:
• Form and join employers’ organisation;
• Participate in an employers’ organisation.
Under Article 41(4) every Trade Union and Employers’ Organisation has the right to:
• Determine its own administration, programmes and activities;
• Organise,
• Form and join a federation.

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Under Article 41(5) every Trade Union, Employers’ Organisation and employer has the
right to engage in collective bargaining.
Under Article 162(2) (a): Parliament shall establish courts with the status of the High
Court to hear and determine disputes relating to employment and labour relations.
2. Legislation
This is the law laid down by an organ of the state which has power to do so i.e.
Parliament {the laws are in writing and known as statutes or acts}. There is a large
variety of laws (more than 20) dealing with labour matters. The nine (9) core labour
legislations are;
i. Industrial Court Act no. 20 of 2011

The Act establishes the Industrial Court as a superior court of record pursuant to
article 162(2) (a) of the constitution. At s. 12, the Act confers jurisdiction on the
court with respect to employment and labour relations. The principal objective of
the Act is to facilitate the just, expeditious and proportionate resolution of
disputes governed by the Act
ii. Employment Act, 2007 (replaced Employment Act, Cap 226 and Regulation
of Wages and Conditions of Employment Act, Cap 229)
The Act declares and defines the fundamental rights and obligations of
employees; Employment relationship (nature and types of employment);
provides the basic conditions of employment for employees; Employment
separation(termination, resignation, dismissal, redundancy, retirement, death)
and benefits upon termination; Regulates employment of children including
protection of children from the worst forms of child labour, minimum age of
employment and prosecution for contravention; Provides the basic terms
applicable to all employment contracts; Insolvency, employment records and
employment management; dispute settlement procedure and General principles
on;
• prohibition against forced labour
• discrimination in employment
• sexual harassment (20 or more employees)
The Act applies to all employees employed by an employer under a contract of

service. It however does not apply to:
• The Defence Forces.
• National Police Service & Kenya Prisons Service.
• National Youth Service.

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• An employer and employer’s dependants where the dependants are the only
employees in a family undertaking.
iii. Labour Institutions Act, 2007

The Act establishes various labour institutions. It provides for their functions,
powers and duties. It provides for the creation and management of all
institutions dealing with labour including;
• The National Labour Board
• Industrial Court
• Committee of Inquiry
• Appointment of Commissioner for Labour, Director of Employment,
Registrar and Deputy Registrars of Industrial Court and Registrar of Trade
Unions
• Wages Councils and wages orders
The Act does not apply to:

• The Defence Forces.
• National Police Service & Kenya Prisons Service.
• National Youth Service.
iv. Labour Relations Act, 2007 (replaced the Trade Unions Act, Chapter 233
and the Trade Disputes Act, Chapter 234)
The Act provides for registration, regulation, management and democratisation

of Trade Unions and Employer Organisations. It promotes sound labour
relations through protection and promotion of freedom of association,
encouragement of effective collective bargaining and promotion of expeditious
dispute settlement. It provides for freedom of association for both employers and
workers, provides for the formation, regulation and dissolution of trade unions,
employers’ organizations and federations
It provides for collection of union dues including agency fees, and subscriptions
for employers’ organizations; recognition of trade unions and Collective
bargaining; dispute resolution and adjudication at the parties own level, Ministry
of labour, Industrial Court and ADR; it provides for strikes and lockouts,
including prohibited strikes and lockouts, Essential services (water supply
services, hospital services, air traffic control services, civil aviation
telecommunication services, fire services of the Government and public
institutions, ports authority and local Government authorities, ferry services);

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Powers of industrial court to deal with urgent applications (recognition,

redundancy without notice, essential services)
v. Work Injury Benefits Act, 2007 (replaced the Workmen’s Compensation

Act, Chapter 236)
The Act provides for compensation to employees for work related injuries and
diseases contracted in the course of their employment. It provides for
compensation of all employees for work related injury or occupational diseases.
It provides for registration of employers and insurance of all employees against
work related injury or occupational diseases, including medical treatment,
appliances and travel expenses (recovery of medical expenses prohibited). It
provides for compensation of employees for occupational accidents or diseases
resulting in disablement or death.
Provides for denial of compensation in the case of;

• injury due to deliberate and willful misconduct(unless injury is serious
- causing more than 40% disability or death)
• employee willfully fails to disclose a medical condition that aggravates
injury or disease. Employee fails to present himself for medical
treatment.
It provides that an employee should not be denied compensation by threats;

Compensation not to be alienated, Maximum compensation to be based on 96
months earnings; temporary disability up to 12 months; payment of
compensation to Director within 90days from date of assessment and to injured
employee or dependants within 30 days.
vi. Occupational Safety & Health Act, 2007 (replaced the Factories and Other
Places of Work Act, Chapter 514)
The Act provides for the safety, health and welfare of workers and all persons
lawfully present at workplaces. It establishes the National Council for
Occupational Safety & Health. The Act applies in any place where a person is at
work. The purpose of the Act is to:
• Secure the safety, health and welfare of persons at work
• Protect persons other than persons at work from risks arising out of
the activities of persons at work
It provides for duties of occupiers (who include employers) workers, self

employed people, suppliers, designers, importers, manufacturers. It makes

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special provisions for health and welfare of workers, machinery and chemical
and safety.
vii. National Social Security Fund (NSSF) Act Cap. 258

It establishes the NSSF as a compulsory contributory social security scheme. It
provides for:
a. Age benefits
b. Withdrawal benefits
c. Invalidity benefits
d. Survivors’ benefits
e. Emigration grants
viii. National Hospital Insurance Fund (NHIF) Act Cap. 255

The Act establishes the NHIF, as an insurance fund which:
a. Caters for medical insurance
b. Pays for expenses incurred by a contributor, and his or her spouse and
dependant children.
ix. Retirement Benefits Act

The Act establishes a Retirement Benefits Authority for the regulation,
supervision and promotion of retirement benefits schemes, the development of
the retirement benefits sector and for connected purposes.
3. International Labour Laws
The international laws are applicable by virtue of article 2(5) and (6) of the Constitution
of Kenya. By way of various conventions, the laws provide for abolition of forced
labour, protection of freedom of association, organisation and collective bargaining,
prescribe the minimum employment age provide for protection from the worst forms of
child labour and provide for non-discrimination in employment.
The core International Labour Organisations (ILO) conventions are the following;
• ILO Con. 29 – on Forced labour ratified on 13th January 1964
• ILO Con. 98 – on Freedom of Association and Collective Bargaining ratified on
13th January 1964
• ILO Con. 100 – on Equal remuneration for work of equal value ratified on 7 th
May 2001
• ILO Con. 105 – on Abolition of forced labour ratified on 13th May 2001
• ILO Con 111 – on Discrimination in employment ratified on 7th May 2001
• ILO Con. 138 – Minimum age of employment ratified on 9th April 1979
• ILO Con. 182 – Worst forms of child labour ratified on 7th May 2001

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Apart from the above the review exercise incorporated a number of ILO standards and
conventions relating to human rights.
4. Judicial precedent
These are the court decisions. The previous court judgements constitute precedents that
courts must follow; only ratio decidendi (reason for judgement) creates precedent.
5. Common law
This is the law which is not legislation. It is the law based on the ancient customs of the
English people.
6. Custom
Though playing a limited role it is critical.
7. legal writing
The views of legal authors are not binding but persuasive to courts.
Review of its labour legislation from 2007 by Kenya;

New legislation consisting of five pieces of statutes were enacted by parliament in 2007.
The new legislation consisted of;
• Employment Act, 2007
• Labour Institutions Act, 2007
• Labour Relations Act, 2007
• Work Injury Benefits Act, 2007
• Occupational Safety and Health Act, 2007
Objectives of labour law review;

The objective of the review was to;
• Domesticate ILO conventions ratified by Kenya in fulfillment of the country’s
obligation as a member of the ILO.
• Ensure that the eight (8) core ILO conventions are adopted within the new labour
laws.
• Ensure employment legislations are more user friendly.
• Harmonize E. Africa Regional Labour Legislation in readiness for the common
market.
INSTITUTIONS OF LABOUR LAW

1. Industrial Court
In pursuance of Article 162(2) of the constitution, the Industrial Court Act at s.4
establishes the industrial court. It is a superior court of record having the status of the
High Court. It has and exercises jurisdiction throughout Kenya.

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The court consists of;

• The Principal Judge; and
• Such number of judges as the President may, acting on the recommendations of
the JSC appoint.
The PJ is elected by the judges of the court from amongst themselves in accordance with
article 165(2) Constitution. The PJ holds office for a term of not more than5 years and is
eligible for re-election for one further term. The PJ has supervisory powers over the
court and is answerable to the CJ.
Qualifications for appointment as a judge are as follows;

• 10 years experience as a superior court judge or professionally qualified
magistrate; or
• 10 years experience as distinguished academic or legal practitioner with
considerable knowledge and experience in the law and practice of employment
and labour relations in Kenya.
The court has exclusive original and appellate jurisdiction to hear and determine
disputes referred to it in accordance with article 162(2) of the Constitution, the
Industrial Court Act and any other law that extends jurisdiction to the court relating to
employment and labour relations.
• Grace Muriithi v. Kenya Literature Bureau (2012).
• USIU v. Attorney-General (2012).
• Anne Muguiyi v. NIC Bank (2012).
• Trusted Society of Human Rights Alliance v. Nakuru Water Company (2013).
See:
• Sec 12(1): matters that the court has jurisdiction over.
• Sec 12(2): persons/bodies who may be parties in the court
• Sec 12(3): orders that the court may make.
• Sec 15: empowering the court to encourage ADR.
• Sec 17: Appeals from its decisions lie to the Court of Appeal.
• Sec 18: The court has appellate jurisdiction over:
o Decisions of the Registrar of Trade Unions.
o Any other court, tribunal or commission as prescribed under any written law
2. National Labour Board

Established under Sec 5(1) of the Labour Institutions Act.
See:
• Sec 6 LIA: composition of the Board who must be Kenyan citizens.

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• Sec 7(1) LIA: functions of the Board. Which are to advice the Cabinet Secretary
on the matters set out in it.
• Sec 7(2) LIA: Commissioner of Labour (as Secretary of the Board), to brief the
Board every 3 months on the matters set out in it
3. Committee of Inquiry
In relation to the Labour Institutions Act see:
• Sec 28: Gives the Cabinet Secretary the power to appoint a Committee of Inquiry
to inquire into any matter which appears to the CS to be connected with or
relevant to any trade dispute whether or not the dispute has been reported to the
CS.
• A CoI consists of 3 or more persons as the CS deems fit to appoint
• A CoI inquires into and reports on any matter referred to it under Sec 28 and
submits a report on the matter to the CS.
4. Labour Administration & Inspection

In relation to the Labour Institutions Act, the CS is vested with powers to appoint
certain officers for the due administration and inspection of labour. These include:
• Commissioner of Labour: Sec 30(1)(a).
• Director of Employment: Sec 30(1)(b).
• Such officers as may be necessary for administration of laws relating to labour
and employment: Sec 30(1)(c).
• Registrar of TU: Sec 31
5. Wages Councils
• Sec 43: The CS shall establish:
o A general wages council.
o An agricultural wages council.
• Sec 44: Functions of WCs;

o Investigate remuneration and conditions of employment in any sector.
o Invite and consider written and oral representations from interested parties.
o Make recommendations to the CS on minimum wage remuneration and
conditions of employment.
6. Employment Agencies
• Sec 3 LIA: any person, company, institution, agency or other organization which
acts as an intermediary for the purpose of procuring employment for a worker.
• Sec 55: employment agencies must be registered with Director of Employment.

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• Sec 53: employment agencies must keep records of their transactions for at least 3
years after occurrence.
7. National Council for Occupational Safety & Health

In relation to Occupational Safety and Health Act, 2007, s.27 establishes the above
council whose functions:
• the formulation and development of national occupational safety and health,
policy framework;
• make legislative proposals on occupational safety and health, including ways
and means to give effect to ILO Conventions, and other international
conventions and instruments relating to occupational safety, health,
compensation and rehabilitation services;
• develop strategic means of promoting the best practices in occupational safety
and health;
• the establishment, maintenance and development of a safety and health
preventative culture;
• the reviewing of the provisions of this Act, rules and regulations, standards and
industry codes of practice;
• the statistical analysis of work related deaths and injuries; and
• such other matters affecting occupational safety and health as it considers
desirable in the interest of improving the quality of working life in Kenya.

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3.0 Employment relationship

TERMS OF EMPLOYMENT; EMPLOYMENT CONTRACT
The concept of voluntary consent to enter a valid contract of employment is prevalent
under common law, based on the freedom of contract as evolved by Courts in the 19 th
century. It was presumed that such contracts were entered into by equals who have
negotiated freely. However practically parties to employment contracts are not equals
hence there has been statutory intervention in employment matters. The general rule of
English Law is that employment contracts need not be in writing. All that was needed
was an agreement to do a particular job in return for a specified amount of money.
Agreement may be reached by word of mouth or in writing or entered from conduct

e.g. an employee who stays on after changes in his work may be deemed to accept those
changes unless he can prove complains or other convincing evidence to the contrary.
However, as flows from logic, from the law of evidence, it should be clear that the best
proof of employment is documentary evidence without such documentary evidence of
agreement only one party’s word against the other is useful in deciding any issue in
dispute.
It is for that reason that in industry and commerce it has been the practice for many
years to cover some of the conditions of employment in written terms. In the last three
decades the law in England has made many exceptions to the general rule that writing
is not necessary. The most substantial requirements as to writing are to be found in
Sections 1-11 of Employment Protection (Consolidation) [EPCA] Act 1978 as amended
in 1983. The effect of the provisions is to ensure that employees have a reasonable
degree of certainty as to the terms of employment. There seems to arise doubts and
disputes over this crucial question.
In Kenya, the Employment Act regulates individual employment law. The Act does not
replace but supplements common law. The effect of S.9 of the Act is that all contracts of
employment except those whose duration is for less than an aggregate of 3 months
must be in writing. The responsibility for writing of contract is on the employer and the
act at s. 10 specifies the period within which the contract must be reduced into writing
as two months from the date when the employment begins.
The position in law is that the contract must set out the terms of contract between the
parties and at common law the contract was referred to as a “written statement.” The
contract is intended only as a record of particulars required under the Employment Act.
However under s.10(2) certain terms must be specified. They include the following:-
1. the name, age, permanent address and sex of the employee;

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2. the job description of the employment;

3. the date of commencement of the employment;
4. the form and duration of the contract;
5. the place of work;
6. the hours of work;
7. the remuneration, scale or rate of remuneration, the method of calculating that
remuneration and details of any other benefits;
8. the intervals at which remuneration is paid; and
9. the date on which the employee’s period of continuous employment began,
taking into account any employment with a previous employer which counts
towards that period; and
10. any other prescribed matter.
In supplementary documents such as terms of service statement the following should
be set out:-
1. entitlement to annual leave, including public holidays, and holiday pay, (the
particulars given being sufficient to enable the employee’s entitlement, including
any entitlement to accrued holiday pay on the termination of employment, to be
precisely calculated);
2. incapacity to work due to sickness or injury, including any provision for sick
pay; and
3. pensions and pension schemes,
4. the length of notice which the employee is obliged to give and entitled to receive
to terminate his contract of employment;
5. where the employment is not intended to be for an indefinite period, the period
for which it is expected to continue or, if it is for a fixed term, the date when it is
to end;
6. either the place of work or, where the employee is required or permitted to work
at various places, an indication of that place of work and of the address of the
employer;
7. any collective agreements which directly affect the terms and conditions of the
employment including, where the employer is not a party, the person by whom
they were made;
8. where the employee is required to work outside Kenya for a period of more than
one month— the statement should show:
o the period for which that employee is to work outside Kenya;
o the currency in which remuneration is to be paid while that employee is
working outside Kenya;
o any additional remuneration payable to the employee, and any benefits due
to the employee by reason of the employee working outside Kenya; and
o any terms and conditions relating to the employee’s return to Kenya.

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9. the disciplinary rules and procedures applicable to the employee if the employer
has employed more than 50 employees – see. S. 12.
The assumption at common law with respect to contract of employment was that
parties were equals and that there was negotiation before the employment. In practice
however, more often than not there are never any negotiations and more often parties
are not equals. The dominant practice is that of standard contracts where the employee
merely signs to signify consent. Equal bargaining power does not exist in the field of
individual employment.
The only way in which that imbalance is ameliorated is through collective bargaining
by trade unions. The contract of employment creates rights and duties between
employer and employee. For that reason, any term in a contract of employment must be
firm and unequivocal so that if one accepts a term of employment subject to conditions
no contract of employment arises.
In Loft –vs- Roberts (1902) AC 40 it was thus held:

That all terms must be ascertained or ascertainable. If not it cannot constitute a
term of contract as such terms are supposed to create rights and duties which
must be known or capable of being ascertained.
Where the terms of contract can be ascertained from conduct, regular and easily
ascertainable conduct must be shown. Certain terms if not expressly provided for in
contract are implied in the contract of employment. This is to safeguard the employees’
weak position in the relationship and arrest instances in which employer fails to take
into account employee’s interests.
The employer is obliged under s. 13 to notify the employee of any change in terms and
conditions of employment. This doesn’t mean that employer has the right to vary terms
unilaterally. There is only one exception to this i.e. where such variation improves
terms of employment of employee.
RIGHTS AND DUTIES OF THE EMPLOYER AND THE EMPLOYEE

Discussions on this will be from the points of duties.
DUTIES OF EMPLOYER
They are set out under Statute and Common Law and include the following:
1. Accord employee respect or act in good faith to employee.
2. To remunerate employee
3. To indemnify employee for any expenses incurred by employee in the course of
duty
4. To employ safety of employee at work

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5. To provide work
6. To provide a weekly rest-day
7. To make provisions for leave
8. To make provisions for maternity and paternity leave
9. To make provisions for sick leave
10. To make provisions for housing
11. To provide wholesome water at work place
12. Where expressly agreed, to provide food at the work place
13. To make provisions for medical attention
1. Respect:
This is a mutual duty required to continue for so long as contract of employment exists.
For so long the common law was reluctant to impose any significant duties on
employers except in regard to safety. In recent time however there have been some
changes reflecting societal change in reflections and expectations. In Wilson –vs-
Racher (1974) ICR 428 Edmond Davies –LJ- opined
“We have by now come to realize that a contract of service imposes upon the
parties a duty of mutual respect. It is now accepted that employers must act in
good faith towards employees so that for instance an employer’s arbitrary
expression of his contractual duties or unilateral changes in the most basic terms
of employment have led on occasions to liability on unfair dismissal.”
This has occurred in instances where employer expressly requires employee to resign
or face dismissal or when he changes the terms and conditions of employment in
some fundamental way which leaves an employee with no chance but to resign. This
is traceable in the case of Gerishon Majanja –vs- Caltex Oil Ltd. Demotion unless
resulting from misconduct may as well have that effect (unfair dismissal)
In Western Excavating (ECC) Ltd –vs- Sharp (1978) QB 761, it was held that for liability
to arise, evidence is needed that the employer is guilty of conduct which shows that he
did not intend to be bound by one or more initial terms of contract. The essential terms
are said to include the essential terms that employer will not seek to destroy the parties
mutual trust and confidence for instance by constantly changing essential terms to
his/her detriment.
Threatening to dismiss an employee if he/she does not accept such changes is also
within the rule. In United Bank Ltd –vs- Akhtar (1989) IRLR 507, the employee worked
in Leeds under a contract which entitled the bank to move him anywhere in the
country. He was officially told on a Friday that he was to begin working on the
following Monday in Birmingham. His request for more time for urgent family reasons
was rejected and his pay was stopped. He resigned and sued. The problem facing the
tribunal was that the bank seemed to be within its contractual rights to order him to

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move. But his claim was upheld for the reason that there was an implied term, that he
would be given reasonable notice, breach of which brought the bank within the Western
Excavating rule and that the bank’s conduct was simply unreasonable and in breach of
duty of mutual respect.
This was also the result in the case of Warner –vs- Barbers Stores (1978) IRLR 109
where employer refused to give employee time off to tend domestic crisis.
The recent developments indicate that the duty has been invoked in instances of sexual
harassment at work. In the case of Insitu Cleaning Co Ltd –vs- Heads (1995) IRLR 4 A
manager’s greeting in these terms, “hi you big tits”, to a female employee twice his age
was held an act of gross indecency and breach of duty to respect employee.
2. Remuneration:
An employer is under duty to pay salary and wages even if he does not provide any
work. The worker’s right to payment depends on the express or implied terms of the
contract. This point was emphasized in the case of Devonald –vs- Rosser & Sons (1906)
2 KB 728
The only exceptions to this rule are:

1. If under contract of employment it is an express or implied term that when there
is no work the employee will not be paid.
2. There is reasonable, certain and notorious custom that when there is no work to
be done the employee is not paid.
S. 17-18 Employment Act: spells out the duties of an employer with respect to
remuneration. S.17 provides that remuneration must be paid to an employee directly
and in a Kenyan currency which payment must be made on a working day and must
not be made where intoxicating liquor is sold or readily available.
S.18 provides when payment must be made: In case of a casual employee, he must be
paid at the end of the day. For a person employed for more than one day but less than
one month, he must be paid at the end of that period. For a person employed for one
month remuneration is at the end of the month.
3. Indemnifying an employee:
Usually there is an express agreement and where there is none, it is implied that the
employer will reimburse the employee any money reasonably incurred in the course of
employment. The employee must however have authority to do so and is reimbursed
such amount as is expended in course of employment.
4. Safety at work:

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This is the most extensive employer’s duty and is imposed by legislation and common
law. Breach can result in suits in negligence by employee or can attract Criminal
liability under relevant statutes (Occupational Safety and Health Act 2007). The duty to
ensure personal safety of employees is part of duty of care. It is intended to ensure that
employees are provided with a safe working environment and that they are
compensated for any injuries sustained in the course of employment.
Subject to the tests in law of tort relating to negligence the duty of care can and actually
is threefold:
(a) Provide safe plants and appliances, so that all equipment must be safe.
(b) Provide a safe system of work i.e. all factors which concern manner in which
work is to be done must constitute a safe work place e.g. layout of plant like fire
escapes in industry, warnings like fire alarm and protective clothing in factories.
(c) To engage reasonably competent employees so as to ensure safety of fellow
employees.
With respect to safety at work Swanwich –J- in the case of Stokes –vs- Guest Keen &
Nettleford (1968) 1 ELR 1976 observed as follows:
1. That positive steps must be taken to ensure safety in light of available
knowledge
2. Employer should follow current recognized practices relating to safety.
3. Where there is developing knowledge with respect to safety, the employer must
keep a breast with respect of such knowledge.
4. If employer has greater than average knowledge of the risk, he must take more
than average precaution.
In terms of S.10 of the Work Injury Benefits Act, in case of death or serious permanent
incapacity, an employee is entitled to compensation whether or not he was in
contravention of statutory provisions or contract of service, so long as death or injury
arose while in course of doing his work.
5. Provision of work:
Once employed an employee has a right to work. This implies that at a broad level a
right not to be discriminated at work place on any ground. The question arises - is the
employer obliged to provide work?
The question was addressed in the case of Langston –vs- AUEW (1974) 1 All ER 180.
Mr. Langston was a skilled man who had been a union member for many years and at
some point a shop steward. He disapproved of the “closed shop principle” i.e. to work in
an industry you must belong to a certain Trade Union. The Union sort to have
employer get rid of him. The Employer had no quarrel with him personally and did
not wish to have himself held liable for compensation for “unfair dismissal”. They
suspended him on full pay. Langston argued that, by suspending him, the employer

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had breached his contractual obligation to provide him with work. Lord Denning held:
employee had a right to work and should be given opportunity to work when
available and is ready to do it.
On a general principle no such right exists. For instance as the Court observed in
Collier –vs- Sundry Referee Publishing Co. (1940) 2 KB 647 - ‘provided I pay my cook
her wages regularly she cannot complain if I choose to take my meals outside.’
If there is a right to work so as to create a duty it may be no more than a right to seek
injunction against arbitrary discrimination at the work place and perhaps when the
worker may be excluded from his occupation. So that unless an employer has bound
himself to provide work, he cannot be liable for failing to provide work as it would be
tantamount to performing a miracle.
In Felix Marete Njagi –vs- A-G, HC Misc Civil Application No. 688 of 1986 (Unrptd)
the labour question descended from a constitutional point of view. Marete was denied
his salary for 2½ years for allegedly being involved in activities disrupting public
interest. He was not formally dismissed but had no pay.
The Court had no difficulty in finding that subjecting a person to a period of 2½ years
without work and pay and freedom to seek alternative employment amounted to
mental torture and therefore inhuman and degrading treatment contrary to S.74 of the
Constitution (as it then was).
6. Weekly rest:
S.27 of the Employment Act obliges employers to provide employee with a day of rest
in every working week.
7. Provisions for leave:

S.28 Employment Act, enjoins employers to give employee annual leave with full pay.
S.28 (1) (a) an employee is entitled to leave of not less than 21 days after every 12
consecutive months of service.
8. Provisions for Maternity and Paternity leave:

S.29 (1) Employment Act, enjoins employers to give a female employee three months
maternity leave with full pay.
S.29 (8) Employment Act, enjoins employers to give a male employee two weeks
paternity leave with full pay.
9. Provisions for sick leave:

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Under s. 30 (1) After two consecutive months of service with his employer, an
employee is be entitled to sick leave of not less than seven days with full pay and
thereafter to sick leave of seven days with half pay, in each period of twelve
consecutive months of service, subject to production by the employee of a certificate of
incapacity to work signed by a duly qualified medical practitioner or a person acting
on the practitioner’s behalf in charge of a dispensary or medical aid center.
10. Housing:
Under S. 31 an employer is under duty at his expense to provide reasonable housing to
his employees where he does not do so, he can pay his employee house allowance.
11. Wholesome water:

S. 32 requires provision of sufficient supply of wholesome water for the use by the
employees at the work place.
12. Food:
Under S. 33 where there is express agreement, the employer must ensure employees
are properly fed and provided with sufficient cooking utensils and proper means of
cooking.
13. Medical attention:

Under S. 34 (1) an employer shall ensure the provision of sufficient and proper
medicine for his employees during illness and if possible, medical attendance during
serious illness.
DUTIES OF EMPLOYEE
These are not spelt out in any statute. Employees are surrounded by duties spelt out in
contracts of employment and Common law. Judges had in the past to lay out standards of
behaviour expected of an employee when deciding whether an employer was entitled
to summarily dismiss an employee, sue him for damages or deduct his pay for any
losses occasioned to the employer.
The duties are: Obedience, Competence, Care and Good faith. In England the position
has changed so that certain duties are statutory under the Employment Protection
(Consolidation) Act).
1. Obedience:
Courts deem contracts of employment as contracts where one party gives orders and
the other obeys. Wilful refusal to obey lawful and reasonable orders is a breach of
contract which may jeopardize one’s employment or give liability to damages. Wilful
refusal connotes intentional repudiation of authority which makes it difficult for

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employment relationship to continue. Such refusal may be oral or by conduct so that a

worker is strictly liable for consequences of his disobedience.
Abuse or rudeness by employee may amount to repudiation of employer’s authority.

A great deal depends on the words used and accepted level of give and take in the
circumstances. In Reaper –vs- Webb (1969) 2 All ER 216 a gardener told to put in some
plants shortly before the end of the day refused to do so and informed his employer
that he could not care less about “your bloody green house and your sodden garden.”
It was held particularly in view of previous complains about the gardener’s insolence,
that this behaviour may make continuance of that relationship impossible and his
summary dismissal was justified.
In Wilson –vs- Racher (1974) ICR 428 the Court held that a single outburst of bad
temper will not usually be enough to end contract usually if the employee was
provoked.
In Laws –vs- London Chronicle (1949)2 All ER 283 the Court decided that disobedience
arising out of inadvertence or misunderstanding would not suffice to terminate
contract.
The Employee is allowed to disobey orders which are unlawful or unreasonable. This
arises where employee is asked to do something he was not called in to do. Essentially
this is breach of contract and is unlawful. Whether an order has the effect of being
unlawful depends on how the employee’s contract was written out. Hence, the
importance of written job specification in the contract of employment. In absence of
such specifications, custom and practice may help in defining employee’s job
specification. An employee is bound to take such duties as are reasonably incidental to
those expressly agreed.
In Gourse –vs- Durham County Council (1972) All ER held: that school teacher’s duties
extended beyond classroom teaching and in absence of anything to the contrary
extended to supervision of students at meal time.
2. Competence:
The law expects an employee to do with reasonable proficiency the job he has
intimated or is employed to do and for which he has implied to do. To justify
dismissal, an employer must show employee’s incompetence has or would cause
material loss or in some important respect the employee fails to meet requirements
of his job.

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In Jackson –vs- Invicta (1987) 2 All ER 301 Held: employer could only escape liability
for wrongful summary dismissal if he could prove a degree of incompetence so great
as to make it impractical to keep employee on job.
3. Duty of care:
In Superlux –vs- Plaisted (958) 1 All ER Court Held: that an employee must take care
of his employer’s goods and interests as if they were his own. A commercial traveller
was held liable in damages because he did not take care of employer’s goods out of the
van in which he was travelling into his house which in the circumstances would have
been inconvenient but safer than leaving them in the van from which they were stolen.
This is a high standard and arguably unjustifiable given that there is no corresponding
duty on employer to safeguard employees goods and interests. In Edwards –vs- West
Hertsfoshire Grp Hospital Management Committee (1971) All ER the court decided
that there is no corresponding duty on employer to take care of employees goods.
The employer will need to show some material loss or damage before exercising the
right to claim material damage. In Jalater Bank –vs- Ahmed (1981) IRLR a branch
manager of the plaintiff bank was held liable in damages for not making proper
inquiries about credit worthiness of certain customers as a result of which they
defrauded the bank large sums of money.
Careless must be judged in the light of what may fairly be expected from an employee.
Higher standards may be expected from professional experts e.g. doctors, engineers
etc.
It is also a factor to be considered whether the loss is caused partly by fault of an

employer e.g. failing to provide instructions or supervision so that the fault will
accordingly reduce the claim of employer.
4. Duty to act in good faith:
Common law requires employees do their work with honesty and integrity and to
avoid situations where their financial or other interests are incompatible with those of
the employer. Certain conflicts of interests are unavoidable in labour relations. It is for
that reason that demands for pay rise and threats of strikes are not regarded as breach
of duty to act in good faith. Duty case is set out in negative terms of not to steal or
reveal trade secrets.
A question arises as to what are minimum obligations of this duty. Some useful
guidelines were spelt out in Secretary of State for Employment –vs- A.S.L.E.F (1972)
S.E.R 19 the case arose in Industrial Relations Court to order a ballot or cooling off
period in event of a strike or irregular industrial action short of a strike which
threatens national economy. Irregular industrial action was described as interference
with the supply of goods and services by a group of workers some or all of whom were

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in breach of their employment contracts. The secretary applied to Court for a ballot
order because rail men were working against the rule of acting irregularly. The
problem before the Court was whether, the men who claim to be following employer’s
instruction could at the same time be breaching employment contract?
Lord Denning stated that in construing, the following must be borne in mind: The
rules must be construed reasonably. They must be construed in usual dealing
and the way they have been applied in practice. In his view when rules were so
construed the railway rules could work effectively and efficiently. He thus stated
“If some of those rules were construed unreasonably the system was in danger of being
disrupted. It is only when they have construed unreasonably that the system grounds to
a halt. It is a clear breach of contract on the part of employer to first construe the rules
unreasonably and put that unreasonable construction in practice.”
With respect to business interests and secrets, the case of Sinclair –vs- Neighbour
(1963) All ER is very instructive. In the case, a shop manager who knew his employer
was not coming to take money from the tin borrowed $15 without permission leaving a
sign IOU and returned the money the following day. The employer dismissed him. The
Court upheld the decision and stated that even though the employer was not out of
pocket, the employee had demonstrated he was a bad risk because he had violated a
basic rule of employment. It was upon him as a manager to keep the till inviolate.
The employee must look after his employer’s client interests on behalf of his employer.
For instance he must not approach his employer’s customers while still in service for
the sake of making business with the customers for himself. In Norman –vs- Britton
(1972) All ER 280 an employee’s use of confidential information about his employer’s
customers in setting up his business was held to entitle his employer to all the profits
of that business.
An employee risks dismissal if he does not pass on to his employer of any knowledge
he may have of any substantial dishonesty among other employees especially if he is in
a position of responsibility. In Austwick –vs- Midlands Rly A union official wrote to
fellow employee demanding that he should apologize for reporting a fellow
employee’s theft to his employer. Held: his behaviour was intimidatory and condoned
dishonesty hence the dismissal justified.
Courts have been reluctant to accept that what a man does in his own time is of any
employer concern but in certain peculiar circumstances they may be bound to accept
employee’s liability. However, some of his activities may be harmful to the employer
directly or indirectly. So that violent and dishonest behaviour out of work may be likely
to suggest his unfitness for office or to damage employer’s reputation as if it took place
at work. The same may be drawn of conduct which is immoral or socially unacceptable. In

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Clouston –vs- Corry (1906) AC 122 a company Manager was held to be properly
dismissed after a conviction of drunk and disorderly in hotel and using obscene
language in presence of women. In Orr –vs- University of Tasmania a married
professor’s dismissal for seducing a female student was upheld.
Changes in public standards must be taken into account in considering the old cases. In
Myers –vs- Mono (1970) 2 All ER 177 dismissal of a manager accused by employer of
being a great pitcher of bottoms and breasts was held unjustified when found to have
pitched only two women on the bottom in isolated circumstances.
NB: Conditions of employment are just the rights and duties in employment contract.
See s. 26 of the Act which declares the minimum working conditions as those contained
in part V and VI of the Act.

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4. TERMINATION OF EMPLOYMENT
TERMINATION OF EMPLOYER-EMPLOYEE RELATIONSHIP
A contract of employment can be terminated by any party at any time. This can be done
in following ways:
1. Mutual agreement:
This derives from the doctrine of freedom of contract. There is no issue of

redundancy or governmental intervention. The parties to the contract merely
agree to end the contract of employment. The agreement must be clear and
voluntary. It should not be forced by any party.
2. Lapse of time (Effluxion of time):
If a contract specifies the duration for which the employer-employee relationship

is to subsist, the contract terminates upon the lapse of such time. Where there is
no reference to time or the employment is described as permanent & pensionable
without age of retirement being specified, the duration of contract of
employment is determined through reasonable interpretation of the contract
which is dependent on the custom or usage of the job in question e.g. for the civil
servant the period is 60 years.
3. By Notice:
Contracts of employment have provision for notice period within which either
party to the contract may intimate to the other his/her desire to terminate the
contract. Upon expiry of such notice period the contract terminates. In lieu of
such notice, the party terminating the relationship may pay the other the
equivalent of such salary as would be earned over notice period. The idea is that
the other party is given time to adjust without interruption.
Where contract is silent on the question of termination by notice, a term will be

implied at common law to make provision for it. The principal function of notice
rule is to give both sides an opportunity of leaving employer-employee
relationship at no cost. The length of notice may be so set as to grant one or both
parties some degree of monetary compensation for the ending of the
relationship. The development of notice rule is historically linked to changes in
typical duration of the contract of employment. When it became normal for
contracts to have indefinite duration as opposed to fixed term contracts it became
necessary for parties and for the courts through the technique of implied term to
make provision for termination by notice.

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See the provisions of S. 35 of the Employment Act on the periods of notice where
a contract of service is one not involving performance of specific work or it is
without reference to time.
4. Frustration:
This arises where there is fundamental change of circumstances. At common law

a contract discharged by frustration is terminated automatically regardless of
opinion or knowledge of parties concerned. That position was adopted in the
case of Hirji Mulji –vs- Cheong Yue SS Co. Ltd (1926) AC.497 .
Supervening events that could frustrate a contract are death of a party,
imprisonment, bankruptcy of employer and liquidation. It is an established
principle of law that a contract will not be frustrated by supervening events if
parties have made provision for that event in the contract.
5. Redundancy:
This arises due to closure of place of work or enterprise or where excess labour in
enterprise is laid off for economic reasons. In such event the employer is liable to
make redundancy payment to the employee, which is calculated by reflection to
employee’s security, salary level and age.
See the provisions of S. 40 of the Employment Act on the conditions that an

employer has to comply with if he has to terminate the employment of an
employee on account of redundancy.
6. Dismissal:
An employer may dismiss an employee for just cause and where that is not so
the employer may be liable for damages for unlawful or wrongful dismissal or
unfair termination. Is there a difference between “unlawful or wrongful dismissal”
and “unfair termination”?
Under S. 44(3) the Employment Act empowers an employer to dismiss an

employee summarily when the employee has by his conduct indicated that he
has fundamentally breached his obligations arising under the contract of service.
Under S. 44(4) the Employment Act empowers an employer to summarily
dismiss his employees for certain reasons. The said reasons are deemed to
amount to gross misconduct and are as follows:
1. without leave or other lawful cause, an employee absents himself from the
place appointed for the performance of his work;

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2. during working hours, by becoming or being intoxicated, an employee

renders himself unwilling or incapable to perform his work properly;
3. an employee wilfully neglects to perform any work which it was his duty
to perform, or if he carelessly and improperly performs any work which
from its nature it was his duty, under his contract, to have performed
carefully and properly;
4. an employee uses abusive or insulting language, or behaves in a manner
insulting, to his employer or to a person placed in authority over him by
his employer;
5. an employee knowingly fails, or refuses, to obey a lawful and proper
command which it was within the scope of his duty to obey, issued by his
employer or a person placed in authority over him by his employer.
6. in the lawful exercise of any power of arrest given by or under any written
law, an employee is arrested for a cognizable offence punishable by
imprisonment and is not within fourteen days either released on bail or on
bond or otherwise lawfully set at liberty; or
7. an employee commits, or on reasonable and sufficient grounds is
suspected of having committed, a criminal offence against or to the
substantial detriment of his employer or his employer’s property.
Under S. 41 the employer is required to notify and give a hearing to an employee before
terminating his employment on grounds of misconduct.
Under S. 43 in any claim arising out of termination of a contract, the employer shall be
required to prove the reason or reasons for the termination, and where the employer
fails to do so, the termination shall be deemed to have been unfair within the meaning
of section 45.
Under S. 45 the law sets out:

- the circumstances under which termination will be deemed unfair which include the
reason is not valid; reason is not related to employee’s conduct, capacity or operational
requirements; procedure is not fair and it is found in the circumstances of the case the
employer did not act in accordance with justice and equity in terminating employment.
- period one needs to be in employment being 13 months to able to complain of unfair
termination.
- factors to be considered in deciding whether it was just and equitable for the employer
to terminate employment which include procedure adopted in reaching decision to
dismiss; conduct and capability of employee; compliance with statutes by employer;
previous practice of the employer and existence of warning letters to the employee.
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Under S. 49 the law sets out:

- the remedies for wrongful dismissal and unfair termination which include wages for
notice period; general damages not exceeding 12 months and reinstatement.
- factors to be considered in deciding the remedies to recommend which include wishes
of the employee; circumstances of termination; practicality of reinstatement; common
law principle against specific performance in employment; length of service; reasonable
expectation of employee as to length of time they would have worked for the employer;
opportunities for the employee to secure comparable employment; value of any
severance payable by law; any unpaid wages, expenses or other claims; expenses as a
result of termination; conduct of employee which may have contributed to termination;
failure of employee to mitigate losses due to unjustified termination and any
compensation including ex-gratia payment made by the employer.
Under S. 50 the law sets out that the employment court should be guided by the
principles in s. 49.
REMEDIES OF BREACH OF CONTRACT EMPLOYMENT

1. Repudiation:
If breach of contract of employment is so fundamental as to indicate lack of intention to
contract the agreed party can repudiate the contract.
2. Damages – measure of damages:

If breach is by the employer, the employee is entitled to damages in the measure of loss
of earnings. However, the employee is under duty to mitigate the loss that arises from
such breach. If he does not damages may not be rewarded at all. The English position is
that if he does, damages may be punitive or exemplary. That was decided in Parry –vs-
Cleaver. See the provisions of S. 49 of the Eployment Act on the measure of damages for
wrongful dismissal and unfair termination.
3. Specific Performance:
This is whereby a court orders an employer to reinstate the employee. Specific
performance is an equitable and discretionary remedy. It is a rare remedy on the basis
of public policy. S. 49(4)(d) reiterates the said position and urges the court to consider
the common law principle that there should be no order for specific performance in a
contract of service except in very exceptional circumstances.

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5.0 FREEDOM OF ASSOCIATION AND THE RIGHT TO

ORGANIZE
TRADE UNIONS AND MEMBERSHIP

Trade Unionism:
To understand Trade Unionism one must understand the social basis of associations.
Social associations have their origin and basis from the “human need for protection.”
Collectively is seen as a basis for defence of one self.
For a social association to exist there must be a community or commonality of interests.

However it must be appreciated that associations are to some extent an expression of
differences in interests. This is because whereas there will always be a commonality of
interests in the same group, there will also exist intra-associational differences e.g. class
differences, age and gender differences.
Where there is community of interests there can be no effective association unless there
exists a level of consciousness of common interest and of necessity organizational
capability to further the interests. It is therefore imperative that a sound institutional
framework for an association be established. Where that is not the case a loose
association arises in that it is informal and adhoc and of little effect in furthering its
objectives.
It is crucial that an association should have high degree of permanence if it is to usefully

pursue its objectives. With respect to employment associations it is worth noting that
employees despite being in different ranks have certain common interests e.g. job
security, level and kind of wages and working and living conditions. The same can be
said of employers e.g. availability of labour, profit generation, investment in living and
working conditions of employees etc.
Of interest is the fact that there is at least one common interest that both employers and
employees pursue i.e. continuation of employer-employee relationship because it’s a
mutual one. The reaction to this reality is that both employers and employees have
formed associations to pursue both their distinct interests and the common ones. That
way collective bargaining is enhanced e.g. it is easier for employee to approach
employer association than individual employer. The difference in workings of employer
and employee associations is the level of consciousness, organizational level and
institutional framework. Employer associations usually have an upper hand in those
issues.
Rationale and role of collective organisation:

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In advanced industrial society the employer always has greater economic and social
power than any worker. For workers to have any effective power in the employment
relationship they must join together to further their demands on a collective basis only
then do they have a chance of counterbalancing the power of employer.
Since the 19th Century the British Trade Unions have in general perceived their primary
role as being improvement of members’ terms and conditions of employment through
the mechanism of collective bargaining. This is not merely functional equivalent of
individual bargain on a collective scale, but a process of joint regulation which
prescribes not only terms upon which individual contracts should draw but may extend
to broader aspects of job regulation and the working environment e.g. disciplinary
procedures and training.
As such it is capable of serving as a conduit for wider demonstration and participation

on the part of workers in the operation of the enterprise. A further benefit of effective
collective organization is that it may assist workers to enforce their legal rights.
Experience has shown that workers join Trade Unions because of the access that
membership gives them to legal representation. Representation by an organization
which has knowledge to recognize potential test cases is reasonably beneficial in putting
pressure on employers to comply on their legal obligations.
On the employers’ side the rationale for collective organization is different from that of
workers. Although employers do form associations both at sectoral and multi-industry
level, these are not the functional equivalent of trade unions in that individual employer
is already a collective power in being the owner of capital.
Origin and growth of trade union movement:

In Europe where trade unionism emerged, employers and government were hostile to
trade unions. This attitude was imported into Kenya by colonial authorities. It was not
until 1937 that recognition of Trade Unions in Kenya came about. The colonial
government encouraged settler investment not only for reason that labour was cheap
but also because workers were expected to be docile. That was the reason why growth
of trade unions was discouraged.
At that time trade unions were treated with suspicion as being agents of political
agitation. Worker organizations were therefore seen as illegal until 1937. In England
initially they were regarded as criminal and civil conspiracies against the government.
It was only the 19th century in England that Trade Unions were recognized.
In Kenya mass discontent in the labour sector did not become significant until 1940s
when workers in town started organizing informally. Earlier on the rural base of labour

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was difficult to organize workers. There had been pre-emptive measures to block such
movement e.g. the Passfield circular of 1930, which suggested limited unionization to
control mass discontent among workers. This circular was ignored until 1937 when
growth of illegal labour movements outbalanced fear of Trade Unionism. It was against
this imbalance of 1937 that Trade Unions Ordinance was enacted.
The theme of ordinance was to empower state control rather than facilitate Trade
Unionism. It created the principle of legality of unionism purposely to create
responsible unionism. As was stated at the passing of the ordinance its aim was:
“to prevent all irresponsible agitators from causing trouble amongst labour in the
country and therefore confine Trade Unionism to strictly non-political
purposes”.
This was to be done through a mechanism of regulation so that disliked bodies were
denied registration. The only value of ordinance, was that on registration the union
would cease to be illegal. Under the ordinance activities by Trade Unions in restraint of
trade were illegal.
Definition of restraint of trade was taken verbatim from the 1870 Trade Unions Act (UK).
From its terms, members of Trade Unions were liable for tortious actions committed in
course of Industrial action. Peaceful picketing (demonstration at work place) was illegal
and so was sympathetic action by the non-striking workers.
This was the position despite the fact that picketing and sympathetic action are major
tools of Trade Unionism. However labour unrest continued in urban areas so much so
that the Trade Unions and Trade disputes ordinance of 1943 was enacted. It was aimed
at creating immunities for union members engaged in lawful activities. It declared that
tortious action against a union member would not be entertained by the Courts. Such
was the burden of the Union itself.
Industrial action was legalized by the ordinance in the sense that no action could be
entertained as against an employee on grounds that he had interfered with labour or
breached his contract in course of action. Peaceful picketing was allowed but ordinance
prescribed what conduct amounted to peaceful picketing.
Regulation of trade unions:

Under S.2 a trade union is an association of employees whose principal purpose is to
regulate relations between employees and employers, including any employers’
organization. A Trade Union must have as its principal object as the furtherance of
members’ interests collectively. A trade Union may have other permissible objects

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which are incidental to the primary object. These must however be set out in the Trade
Union’s constitution.
The constitution of a Trade Union is like a standard form contract so much so that its
members are bound by all the rules established thereunder. The framework for
regulation of Trade Unions is found in the Labour Relations Act. Part III of the Act
establishes the institutional framework for the registration of Trade Unions. It’s from
the fact of registration that Trade Unions derive their legal validity. The institutional
framework comprises the Registrar of Trade Unions, Deputy Registrar, Assistant
Registrars and other officers. These officers are vested with the powers by the Act to
reject registration so long as they act within the powers granted by the Act. They are
immune from legal action. They must however act in good faith and without negligence
in executing their statutory duties.
S. 12-14 prescribes the procedure and the requirements for establishing and registering
a Trade Union. S.12 provides that a person shall not recruit members for the purpose of
establishing a trade union or employers’ organization unless that person has obtained a
certificate from the Registrar issued under this section. The application for the
certificate shall be signed by two persons who are promoting the establishment of the
trade union or employers’ organization; specify the name of the proposed trade union
or employers’ organization and contain any other prescribed information.
The Registrar shall then issue a certificate within thirty days of receiving an application
unless
a. the application is defective; or
b. the name of the proposed trade union or employers’ organization is the same as
that of an existing trade union or employers’ organization or is sufficiently
similar so as to mislead or cause confusion.
The certificate issued shall specify that—

a. the promoters may undertake lawful activities in order to establish a trade union
or employers’ organization; and
b. an application for the registration of the trade union or employers’ organization
shall be made to the Registrar within six months of the date of issue of the
certificate.
The Registrar may withdraw a certificate issued under this section if the Registrar has
reason to believe that—
a. the certificate was obtained by fraud, misrepresentation or as a result of a
mistake; or

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b. any person has undertaken an unlawful activity, whether in contravention of this

Act or any other law, on behalf of the proposed trade union or employers’
organization.
S. 13 provides that a trade union or employers’ organization shall apply to the

Registrar for registration within six months of receiving a certificate issued as afore
mentioned.
S. 14 provides for the requirements for registration of a trade union as follows:-

That a trade union may apply for registration if—
a. the trade union has applied (i.e. prepared an application) for registration in
accordance with the Act;
b. the trade union has adopted a constitution that complies with the requirements
of this Act, including the requirements set out in the First Schedule;
c. the trade union has an office and postal address within Kenya;
d. no other trade union already registered is—
i. in the case of a trade union of employers or of employees, sufficiently
representative of the whole or of a substantial proportion of the interests
in respect of which the applicants seek registration; or
ii. in the case of an association of trade unions, sufficiently representative of
the whole or a substantial proportion of the trade unions eligible for
membership thereof:
Provided that the Registrar shall, by notice in the Gazette and in one national
daily newspaper with wide circulation, notify any registered trade union,
federation of trade unions or employers’ organizations which appear to him to
represent the same interest as the applicants of the receipt of such application
and shall invite the registered trade union federation of trade unions or
employers’ organization concerned to submit in writing, within a period to be
specified in the notice, any objections to the registration;
e. only members in a sector specified in the constitution qualify for membership of
the trade union;
f. the name of the trade union is not the same as that of an existing trade union, or
sufficiently similar so as to mislead or cause confusion;
g. the decision to register the trade union was made at a meeting attended by at
least fifty members of the trade union;
h. the trade union is independent from the control, either direct or indirect, of any
employer or employers’ organizations; and
i. the trade union’s sole purpose is to pursue the activities of a trade union.

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S. 15 prescribes the requirements for registering an employers’ organization, s. 16

prescribes the requirements for registering a federation of trade unions while s. 17
prescribes the requirements for registering a federation of employers.
S. 18 prescribes the requirements for application for registration of a trade union as

follows:- That an application to register a trade union, employers’ organization or
federation shall be made to the Registrar in Form A set out in the Second Schedule,
accompanied by—
a. the prescribed fee;
b. a certified copy of the constitution of the trade union or employers’ organization;
and
c. a certified copy of the attendance register and minutes of the meeting at which
the trade union, employers’ organization or federation was established.
The application to register a trade union shall be signed by seven members of the trade
union. The Registrar is empowered to call for further information for the purposes of
evaluating an application for registration or give an applicant for registration an
opportunity to rectify the application within a period specified by the Registrar.
If the proposed name of a trade union, employers’ organization or federation is the

same or sufficiently similar to that of an existing organization so as to mislead or cause
confusion, the Registrar shall either request the applicant for registration to alter the
name of the trade union or employers’ organization or federation; or decline to register
the trade union, employers organization or federation until a suitable alteration has
been made.
S. 19 provides for the actual registration of a trade union as follows:- That if the
Registrar is satisfied, after consulting the Board, that a trade union, employers’
organization or federation that has applied for registration meets the requirements of
the Act, the Registrar shall register that trade union, employers’ organization or
federation and shall—
a. issue a certificate of registration in Form B set out in the Second Schedule; and
b. enter the name and details of the trade union, employers’ organization or
federation in the appropriate register in Form C set out in the Second Schedule.
The certificate of registration issued as above mentioned is conclusive evidence that the
trade union, employers’ organization or federation has been duly registered under this
Act unless it is proved that the certificate has been withdrawn or cancelled.
S. 20 provides for the refusal of registration of a trade union as follows:- That if the
Registrar is not satisfied that a trade union, employers’ organization or federation meets
the requirements for registration and refuses the application for registration, the

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Registrar shall advise the trade union, employers’ organization or federation of the
reasons for that refusal in Form D set out in the Second Schedule.
S. 21 provides for the effect of registration of a trade union as follows:- That a trade
union, employers’ organization or federation shall be registered as a body corporate—
a. with perpetual succession and a common seal;
b. with the capacity in its own name to—
(i) sue and be sued; and
(ii) enter into contracts; and
c. hold, purchase or otherwise acquire and dispose of movable and immovable
property.
See S. 28 on grounds upon which the registrar may cancel or suspend the registration.
Part IV provides for officials and members of trade unions and employers’
organizations. S. 31 - 32 provides for qualifications for membership and office: Any
person over apparent age of 16 years can belong to a Trade Union. Any person below
that age cannot be an officer or trustee of a Union. For such officer-ship or trusteeship
one must be over 21 years. One has to be working in an industry to which the Trade
Union relates to qualify for membership. Additionally one has to be employed or
resident in Kenya.
Legal personality of trade unions:

This area of law has evolved tremendously and a trade union has legal personality but
not like that of companies given that it has slight differences. Trade Unions have no
legal personality beyond that conferred by the Labour Relations Act. Salient features of
legal personality of a trade union are as follows:- The law gives immunity from civil
suits in certain instances in furtherance of a trade dispute. This is because a trade union
is formed in furtherance of the interests of its members and thus could involve itself in
activities amounting to breach of contract or restraint of trade. See S.22.
The law gives trade unions immunity from tortious liability arising from the conduct of
industrial action. Trade unions have the right to sue and be sued in their own names.
Trade unions have the power to hold and own property in their own names but such
property is vested in the trustees. Conditions attached to holding of property are:
a. Be held and used for benefits of and furtherance of activities of the trade union
b. There must be kept accounts of how the property of the union is used.
c. Annual Returns must be rendered to the registrar including all the trade unions’
financial activities.
Trade unions have direct right of perpetual succession vested in the trustees.

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Dissolution of trade unions:

The law assumes that dissolution of a trade union will be done in accordance with the
constitution or Rules Book of the trade union. The law requires that once dissolution is
effected the registrar must be notified within 14 days by a notice signed by at least 7
members and the secretary general of the union. After such dissolution, it ceases to exist
and all activities carried out thereafter other than for purposes of winding up are illegal.
See S. 29 of the Labour Relations Act.
COLLECTIVE BARGAINING AND COLLECTIVE AGREEMENTS

Collective bargaining:
Initially, contracts of employment were individual and were presumed to be freely
negotiated by parties to such contracts. The trend later moved to contracts drawn by
employers so that terms are not negotiated by parties. This is the mode of employment
used by most institutional employers today.
When Trade Unions emerged, the concept of collective bargaining arose to ameliorate
the weak standing employees had. The result of collective bargaining was Collective
Bargaining Agreements (CBAs). The basic inputs of Collective Bargaining are conflicts
and disorder because it leads to breach of existing terms which creates a conflict of
interests followed by disorder because it involves attempts to secure new interests or
rights or to vary existing ones.
The basic output of collective agreements are that a framework of rules for resolving
conflicts is established i.e. norms to be followed in dispute resolution e.g. how
redundancy is to be carried out etc. There are various theories as to purpose of
collective bargaining which can be summarized as follows:-
1. It fortified workers’ strength in the sense that it’s difficult to negotiate with
employer as an individual employee.
2. It introduces democratic participation by workers in the enterprise in the sense
that their representatives negotiate with employers on their behalf.
3. It introduces an element of industrial peace especially where there is recognition
of Trade Unions.
4. It creates an element of power in industrial relations between labour force and
management.
Indeed the Industrial Relations Charter of 1962 was meant to introduce cooperation
and consultation on mutual understanding which is necessary for efficiency in
production or development of any industrial undertaking.
The Charter sets out responsibilities for management and Trade Unions on which
Collective Bargaining would be based. The Charter:

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1. Sets out speedy machinery for settlement of disputes between employers and
workers.
2. Decided that future industrial disputes were to be settled by negotiation,
conciliation or arbitration and as a last resort Industrial Action which had to be
preceded by notice.
3. Declared that intimidation and victimisation of worker was unlawful.
4. Directed that management and unions should foster good relations among
their representatives.
5. Directed that management and employees be educated on their industrial
obligations.
6. Advised that management and employees recognize and respect each other’s
freedom.
The Charter sets out specific responsibilities of Management as follows:
1. Recognizing unions as bodies to negotiate with.
2. Granting employees the freedom to join the unions they want.
3. Encourage speedy settlement of disputes and implementing settlements thereof
expeditiously.
4. Establishing proper disciplinary procedures and mechanisms.
On the part of Unions the Charter identified the specific responsibilities as being:
1. Discouraging wild cats strikes i.e. strikes that take place without following laid
down procedures.
2. Discouraging bad or negligent workmanship and encourage maintenance of
essential services.
3. Setting up a model recognition agreement and joint labour federation.
The structure of Collective Bargaining in Kenya is as follows:-
a) At the outset voluntary recognition, presupposed so that a mechanism for it
should be put in place.
b) If that fails resort is had to conciliation and investigation through a conciliatory
team setup by the minister under Labour Relations Act (see S. 54) for that
purpose.
c) If that fails recourse is had to compulsory arbitration through Employment and
Labour Relations Court.
In Kenya Collective Bargaining is not a market place affair but a legislative concern.
Labour Relations Act deals with mechanisms for that. It is also a tripartite power
relationship between employer and employee through Trade Union, Government and
employers and government and employees (i.e. employer, employee and Government).
Collective labour relations mean that the individual workers must sacrifice their
individual freedom of contracts to their respective Trade Unions which bargain on their
behalf. The co-relative to this is that management is at times compelled to or of its own
motion finds it quite appropriate to recognize the relevant Trade Union for purposes of
collective bargaining.

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The subject matter of Collective Bargaining is two-fold

1. Procedures – which relates to negotiations and recognition of Trade Unions.
2. Substantive – which relates to negotiation on terms of employment e.g. wage
level, conditions of work etc.
In terms of the decision in Thomson –v- Dekin (1952) CD 646 at common law there was
no duty on an employer to recognize a Trade Union. Similarly, at common law there
was no duty to bargain with Trade union as was declared by the court in Stratford &
Sons –v- Lindley.
The position in Kenya has been modified by statute. S.54 of the Labour Relations Act
deals with recognition of Trade Unions. The Act requires that an employer shall
recognise a Trade Union with simple majority of employee members in a certain field
where there is no Union claiming to represent them. Where such rivalry exists, the
minister is enjoined to sort out such rivalry. The minister’s decision can be challenged in
an Employment and Labour Relations Court, which may amend, revoke or approve the
minister’s decision (see S. 62).
Legal status of collective bargaining agreements:

Do they have a contractual effect? The legal answer must emanate from the fact whether
a Trade Union is a principal or an agent. Can an employee thus sue an employer
successfully for breach of terms of a CBA? The answer depends on whether the CBA
was intended to be binding. At common law CBAs were not meant to bind the union as
a body since it was not a party to the initial contract of employment. The position has
been modified by the Labour Relations Act.
This position at common law was taken by the court in the case Ford Motor Company
Ltd –vs- Amalgamated Union of Engineering and Foundry Workers (AUEFW) (1969) 2
QB 303 : (This case has been overtaken by the statute). By a 1955 agreement a joint
negotiating committee between ford and fifteen Trade Unions was set up. All the
parties signed the agreement. In 1967 a similar agreement made provision for new
terms and conditions which provided that any variation must be negotiated through a
1955 meeting. In 1969, Ford proposed a variation which was noted upon and acted. But
some unions which represented 2/3 of the task force rejected it. Ford announced that
new terms had been agreed upon. Some of those terms were violently opposed by a
cross section of the dissenting unions and some members undertook wild cat strikes.
The AUEFW made the strike official for its members. Ford sued the Union for breach of
the 1969 agreement. Lane –J- in dismissing the suit stated:
“Agreements such as these are composed largely of optimistic aspirations
presenting grave practical problem of enforcement and they reached against a

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background of opinions adverse to enforceability are not contracts in the legal

sense and are not enforceable in law. Without clear and express provisions
making them amenable to legal process, they remain in realm of undertakings
binding in honour.”
Thus at Common Law the position is that a CBA is not contract in the sense that an
individual cannot enforce it. A member of Union cannot enforce it against an employer
in a court of law. A Trade Union also cannot enforce it against an employee because
there is no privity of contract between the employee and the trade union.
The position in England is different by virtue of Trade Unions and Labour Relations
(consolidation) Act (1993). In the USA the Taff Hartley Act 1947 introduced a clause to the
effect that suits for violations of agreements between employer and a labour
organization representing employees in an industry may be brought in any district
court having jurisdiction over the Plaintiffs without regard to the amount of money in
consideration. Thus the US Law recognizes such agreements as being legally binding.
Under Part VII of the Labour Relations Act s. 60 provides for registration of CBA so as
to make it valid as a CBA. S. 59 also provides for the legal status and effect of CBAs.
Thus our position is that the fact of registration of a CBA by the Employment and
Labour Relations Court makes it legally enforceable against employers and employees
but it’s upon the employers to incorporate them into the individual contracts of
employment of the unionisable workers.

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6.0 LABOUR DISPUTE RESOLUTION and INDUSTRIAL ACTION

INDUSTRIAL RELATIONS
Industrial relations are a dynamic social-economic process. They encompass the whole
field of relationships that exist because of necessary collaboration of individuals in the
employment process. It is not the course in the effect of social, political and economical
forces. The relationship starts with co-operation and soon changes to conflict and
thereafter resolution of conflicts which changes the relationship once again to co-
operation.
That changing process becomes a continuous feature in the industrial relations system.
The relationship between an employer and an employee is based on mutual adjustment
of interests and obligations. It depends on economic, social and psychological
satisfaction on both sides. The higher the faith on both sides the healthier the
relationship
In practice however the interests and objectives of the parties are sharply divided and
not easily amenable to reconciliation. This is made worse by fact that financial resources
are limited. The legislative task of balancing these conflicting interests proves an
extremely difficult exercise in view of the conflict of interests between the parties and
need to protect the interests of the public and third parties. The relationship between
employers and employees is one in which shared interests is far more significant than
the opposing ones. On the one hand employees need to work to earn a living on the
other employers need employees to run the enterprise.
Despite that commonality of interests disputes do arise between employers and

employees. Most of the legal regimes employers seek to regulate their dealings through
the mechanism of state with respect to each other, recognizing the possibility of
disagreement and dispute.
The importance of an appropriate system of dispute resolution adapted to the needs of

each national labour relation system is widely recognized today. The absence of dispute
resolution procedure can result in industrial chaos with adverse effects on the economy.
DISPUTE RESOLUTION
In Kenya the Labour Relations Act no. 14 of 2007 at part VIII lays down framework for
trade dispute resolution. S. 2 of the Act defines a Trade Dispute as a dispute or
difference, or an apprehended dispute or difference, between employers and
employees, between employers and
trade unions, or between an employers’ organisation and employees or trade unions,
concerning any employment matter, and includes disputes regarding the dismissal,

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suspension or redundancy of employees, allocation of work or the recognition of a trade

union.
That definition is wide because it was intended by parliament to cover all possible areas
of disputes within the labour relation system with a view to subjecting them to the
provisions of the Act.
Essentially there are two kinds of Trade disputes:

a. Rights Disputes
These arise out of a situation in which parties are denied what the law or contract of
employment grants them as of right. It arises out of a term.
b. Interests Disputes
Theses arise out of situation in which one party feels that something should be granted
or accepted by the other party. The Labour Relations Act provides for conciliation,
investigation, the Employment and Labour Relations Court and arbitration as the methods of
resolving disputes once they have arisen. The Arbitration Act (No. 4 of 1995) shall not
apply to any proceedings before the Employment and Labour Relations Court.
Reporting of trade disputes to the Minister:

Under S. 62 a trade dispute may be reported to the Minister* in the prescribed form and
manner by or on behalf of a trade union, employer or employers’ organization that is a
party to the dispute and by the authorised representative of an employer, employers’
organisation or trade union on whose behalf the trade dispute is reported.
The person reporting a trade dispute shall serve a copy by hand or registered post on
each party to the dispute and any other person having a direct interest in the dispute
and satisfy the Minister that a copy has been served on each party to the dispute by
hand or by registered post.
A trade dispute concerning the dismissal or termination of an employee shall be

reported to the Minister within ninety days of the dismissal or any longer period that
the Minister, on good cause, permits. If the issue in dispute concerns the redundancy of
one or more employees, a trade union may report a trade dispute to the Minister at any
stage after the employer has given notice of its intention to terminate the employment
of any employee on grounds of redundancy.
The reporting of a trade dispute by a trade union under subsection does not prevent an
employer from declaring employees redundant on the expiry of notice of intention to
declare the employees redundant.

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Respondent may file replying statement:

Under S. 63 every party to a trade dispute shall file a replying statement in the
prescribed form and manner with the Minister within fourteen days of receiving a copy
of the report of the dispute. The failure by a party to file a replying statement does not
affect the validity of a referral.
Interested party may file statement of interest:

Under S. 64 any party who has an interest in any dispute may file a statement with the
Minister within fourteen days of receiving a copy of the referral.
Minister to appoint conciliators:
Under S. 65 within twenty-one days of a trade dispute being reported to the Minister
the Minister shall appoint a conciliator to attempt to resolve the trade dispute unless:-
1. the conciliation procedures in an applicable collective agreement binding on the
parties to the dispute have not been exhausted; or
2. a law or collective agreement binding upon the parties prohibits negotiation on
the issue in dispute.
The Minister may require any party to a trade dispute to supply further information for
the purpose of deciding whether to appoint a conciliator. If the Minister refuses to
appoint a conciliator as specified in subsection he shall supply the parties to the dispute
with written reasons for that decision.
Where a party is aggrieved by the Minister’s decision not to appoint a conciliator, the
party may refer the matter to the Employment and Labour Relations Court under a
certificate of urgency. The Minister may consult the Board on any trade dispute, which
has been reported for conciliation.
Persons appointed to conciliate:

Under S. 66 a person appointed to conciliate a dispute as envisaged hereinabove shall
be:-
1. a public officer;
2. any other person drawn from a panel of conciliators appointed by the Minister
after consulting the Board or
3. a conciliator from the Conciliation and Mediation Commission.
If the Minister appoints a conciliation committee to conciliate a trade dispute, the

Minister shall appoint—
1. a chairperson in accordance with the above mentioned requirements;
2. an even number of persons drawn equally from lists submitted to the Minister by
the employer and trade union representatives respectively on the Board; and
3. the secretary of the conciliation committee.

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Conciliator’s powers to resolve dispute:

Under S. 67 the conciliator or conciliation committee appointed as above shall attempt
to resolve the trade dispute referred to in section 65(1) within:-
1. thirty days of the appointment; or
2. any extended period agreed to by parties to the trade dispute.
For the purposes of resolving any trade dispute, the conciliator or conciliation
committee may:-
1. mediate between the parties;
2. conduct a fact-finding exercise; and
3. make recommendations or proposals to the parties for settling the dispute.
For the purposes of resolving any trade dispute, the conciliator or conciliation
committee may:-
1. summon any person to attend a conciliation;
2. summon any person who is in possession or control of any information, book,
document or object relevant to resolving the trade dispute to appear at the
conciliation; or
3. question any person present at a conciliation.
The Minister shall pay the prescribed witness fee to any person who appears before a
conciliator or conciliation committee in response to a summons issued as above. No
person shall without good cause fail to:-
1. comply with a summons issued
2. produce any book, document or item specified in a summons issued or
3. answer any relevant question asked by a conciliator or conciliation commission
under.
Dispute resolved after conciliation:

Under S. 68 if a trade dispute is settled in conciliation the terms of the agreement shall
be:-
1. recorded in writing; and
2. signed by the parties and the conciliator.
A signed copy of the agreement shall be lodged with the Minister as soon as it is
practicable.
Dispute unresolved after conciliation:

Under S. 69 a trade dispute is deemed to be unresolved after conciliation if the:-
1. conciliator issues a certificate that the dispute has not been resolved by
conciliation; or

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2. thirty day period from the appointment of the conciliator, or any longer period
agreed to by the parties, expires.
Minister may appoint conciliator in public interest:

Under S. 70 if the Minister is satisfied that it is in the public interest to prevent a dispute
from arising or to resolve a dispute, the Minister may appoint a conciliator or
conciliation committee to attempt to prevent a dispute or resolve the dispute.
The Minister may appoint a conciliator or conciliation committee in respect of a dispute

that has not been referred to conciliation or is unresolved after conciliation, irrespective
of whether a trade union is a party to the dispute or not or the dispute is in the public or
private sector.
Committee of inquiry:
Under S. 71 the Minister may appoint a committee of inquiry to investigate any trade
dispute and report to the Minister.
Exercise of powers of the Minister:

Under S. 72 the Minister may delegate his powers under this Part to the Commissioner
for Labour or the Chief Industrial Relations Officer.
Referral of dispute to Employment and Labour Relations Court:

Under S. 73 if a trade dispute is not resolved after conciliation, a party to the dispute
may refer it to the Employment and Labour Relations Court in accordance with the
rules of the Employment and Labour Relations Court. However if a trade dispute is one
in respect of which a party may call a protected strike or lockout, the dispute may only
be referred to the Employment and Labour Relations Court by an aggrieved party that
has made a demand in respect of an employment matter or the recognition of a trade
union which has not been acceded to by the other party to the dispute or is in an
essential service, the Minister may, in addition, refer the dispute to the Employment
and Labour Relations Court.
A trade dispute may only be referred to the Employment and Labour Relations Court
by the authorized representative of an employer, group of employers, employers’
organisation or trade union.
Urgent referrals to Employment and Labour Relations Court:

A trade union may refer a dispute to the Employment and Labour Relations Court as a
matter of urgency if the dispute concerns:-
1. the recognition of a trade union in accordance with section 62; or

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2. a redundancy where the trade union has already referred the dispute for
conciliation under section 62(4) or the employer has retrenched employees
without giving notice or
3. employers and employees engaged in an essential service.
Arbitration Act does not to apply:

Under S. 75 the Arbitration Act (No. 4 of 1995) shall not apply to any proceedings
before the Employment and Labour Relations Court.
INDUSTRIAL ACTION (STRIKES AND LOCK-OUTS)

Protected strikes and lock-outs:
Under S. 76 a person may participate in a strike or lock-out if:-
1. the trade dispute that forms the subject of the strike or lock-out concerns terms
and conditions of employment or the recognition of a trade union;
2. the trade dispute is unresolved after conciliation under the Act or as specified in
a registered collective agreement that provides for the private conciliation of
disputes; and
3. seven days written notice of the strike or lock-out has been given to the other
parties and to the Minister by the authorised representative of the trade union, in
the case of a strike; the employer, group of employers of employers’
organisation, in the case of a lock-out.
Powers of Employment and Labour Relations Court:

Under S. 77 a party to a dispute that has received notice of a strike or lock-out may
apply to the Employment and Labour Relations Court to prohibit the strike or lock-out
as a matter of urgency if:-
1. the strike or lock-out is prohibited under this Part; or
2. the party that issued the notice has failed to participate in conciliation in good
faith with a view to resolving the dispute.
A party that failed to attend any conciliation meeting may not seek relief as above
mentioned and the Employment and Labour Relations Court may, in granting the said
relief direct the parties to engage in further conciliation in good faith with a view to
resolving the dispute.
Prohibited strikes or lock-outs:

Under S. 78 no person shall take part in a strike or lock-out or in any conduct in
contemplation of a strike or lock-out if:-
1. any law, court award or a collective agreement or recognition agreement binding
on that person prohibits a strike or lock-out in respect of the issue in dispute;

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2. the subject matter of the strike or lock-out is regulated by a collective agreement

or recognition agreement binding on the parties to the dispute;
3. the parties have agreed to refer the trade dispute to the Employment and Labour
Relations Court or to arbitration;
4. in the case of a dispute concerning the recognition of a trade union, the trade
union has referred the matter to the Employment and Labour Relations Court;
5. the trade dispute was not referred for conciliation in terms of this Act; or a
collective agreement providing for conciliation;
6. the employer and employees are engaged in an essential service;
7. the strike or lock-out is not in furtherance of a trade dispute; or
8. the strike or lock-out constitutes a sympathetic strike or lock-out.
For the purposes of this section:-

1. an employee engages in a sympathetic strike if the employee participates in a
strike in support of a trade dispute in respect of which the employee’s employer
is not a party to the dispute; or is not represented by an employer’s organisation
that is a party to that dispute; or
2. an employer engages in a sympathetic lock-out if the employer locksout an
employee in support of a trade dispute to which the employer is not a party; or
in respect of which the employer is not represented by an employer’s
organisation that is a party to dispute.
Strike or lock-out in compliance with this Act:

Under S. 79 a “protected strike” means a strike that complies with the provisions of the
Act and “protected lock-out” means a lock-out that complies with the provisions of this
Act.
A person does not commit a breach of contract or a tort by taking part in a protected
strike or a protected lock-out; or any lawful conduct in contemplation or furtherance of
a protected strike or a protected lock-out.
An employer may not dismiss or take disciplinary action against an employee for
participating in a protected strike or for any conduct in contemplation or furtherance of
a protected strike. Civil proceedings may not be instituted against any person for
participating in a protected strike or a protected lock-out; or any conduct in furtherance
of a protected strike or protected lock-out. The above provisions do not apply to any
action that constitutes an offence. An employer is not obliged to remunerate an
employee for services that the employee does not render during a protected strike or
lock-out.
Strike or lock-out not in compliance with this Act:

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Under S. 80 an employee who takes part in, calls, instigates or incites others to take part
in a strike that is not in compliance with this Act is deemed to have breached the
employee’s contract and—
1. is liable to disciplinary action; and
2. is not entitled to any payment or any other benefit under the Employment Act
during the period the employee participated in the strike.
A person who refuses to take part or to continue to take part in any strike or lock-out
that is not in compliance with this Act may not be:-
1. expelled from any trade union, employers organisation or other body or
deprived of any right or benefit as a result of that refusal; or
2. placed under any disability or disadvantaged, compared to other members or the
trade union, employers’ organisation or other body as a result of that refusal.
Any issue concerning whether any strike or lock-out or threatened strike or lock-out
complies with the provisions of this Act may be referred to the Employment and
Labour Relations Court.
Essential services:
Under S. 81 “essential services” means a service the interruption of which would
probably endanger the life of a person or health of the population or any part of the
population.
The Minister, after consultation with the Board shall from time to time, amend the list of
essential services contained in the Fourth Schedule and may declare any other service
an “essential service” for the purpose of the Act if a strike or lock-out is so prolonged as
to endanger the life, person or health of the population or any part of the population.
The essential services include the following:

1. Water Supply Services.
2. Hospital Services.
3. Air Traffic Control Services and Civil Aviation Telecommunications Services.
4. Fire Services of the Government or Public Institutions.
5. Posts Authority and Local Government Authorities.
6. Ferry Services.
There shall be no strike or lock-out in an essential service. Any trade dispute in a service
that is listed as or is declared to be an essential service may be adjudicated upon by the
Employment and Labour Relations Court. A collective agreement may provide that any
service may be deemed to be an essential service.

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LABOUR LAW – By Dennis

1.0 INTRODUCTION TO LABOUR LAW

DEFINITION OF LABOUR LAW

SCOPE OF LABOUR LAW

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involve exchange of personal services for remuneration. Labour law is concerned

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DISTINCTIVE FEATURES OF LABOUR LAW

In Britain, it is adequately covered by a host of statutory provisions and Common Law

AREAS WITHN PRECINCTS OF LABOUR LAW

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HISTORICAL BACKGROUND AND DEVELOPMENT OF LABOUR LAW IN

At a conference in 1920 of International Labour Organization, Lord Justice Scrutton

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Modern labour relations in Britain:

The modern law of employment emphasizes the personal revolutionary exchange of

Before the advent of colonial government in Kenya, Africans lived in a community

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Espelth Huxley’s book ‘Whiteman’s country’, he thus observed that:

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Land alienation and effects on labour:

Richard Wolff in his book “Britain in Kenya” states:

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Labour crisis of 1907 to 1909:

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That dilemma is captured by the letter to colonial government by labour commission

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The ordinance was of importance to the settler community because Africans

The ordinance established and catered for settler-squatter relationship. Natives

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2.0 SOURCES AND INSTITUTIONS OF LABOUR LAW

SOURCES OF LABOUR LAW

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i. Industrial Court Act no. 20 of 2011

The Act applies to all employees employed by an employer under a contract of

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iii. Labour Institutions Act, 2007

The Act does not apply to:

The Act provides for registration, regulation, management and democratisation

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Powers of industrial court to deal with urgent applications (recognition,

v. Work Injury Benefits Act, 2007 (replaced the Workmen’s Compensation

Provides for denial of compensation in the case of;

It provides that an employee should not be denied compensation by threats;

It provides for duties of occupiers (who include employers) workers, self

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vii. National Social Security Fund (NSSF) Act Cap. 258

viii. National Hospital Insurance Fund (NHIF) Act Cap. 255

ix. Retirement Benefits Act

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Review of its labour legislation from 2007 by Kenya;

Objectives of labour law review;

INSTITUTIONS OF LABOUR LAW

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The court consists of;

Qualifications for appointment as a judge are as follows;

2. National Labour Board

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