Wednesday, November 11, 2015

50% pay rise: Court of Appeal Decides

Here is a link to the most recent decision of the Court of appeal on the teacher's 50% pay rise dispute.

Wednesday, September 23, 2015


The recent decision by the International Criminal Court (ICC) to allow the prosecution to use prior recorded evidence in the case of Deputy President William Ruto and Joshua Sang and the notification of closure of the prosecution’s that followed soon, raise key issues that go to the core of ensuring that the ICC delivers justice. I say so for two key reasons.
To begin with, the rule of law dictates that as citizens, surrender their sovereign power to the governor. They also agree on certain fundamental rules that the governor must apply while ruling the people. For instance upholding human dignity, treating all people equally under the law and no-one should be condemned unheard. The last rule is central to the ICC debate. The rule dictates that before you condemn a person, you must hear his side of the story first. This is especially important for criminal cases where the prosecution must prove their case beyond reasonable doubt.

When the ICC decided to allow the use of testimony that was recanted, it simply means that the defence will never get an opportunity to challenge the evidence thereof. It means that the Court can go ahead and use such evidence in its determination that the accused has a case to answer yet the defence never had an opportunity to test the authenticity of such evidence through cross-examination. It means that if for instance if the statement says ‘he saw the accused commit the crime’ then that evidence is deemed to stand as it has not been challenged. This is such an affront on justice and even a lay man would concur that the accused will be denied justice. It is also important to note that this rule applies in the same way in commercial, civil, land and family disputes.

The second relates to how the new rule was introduced. In the 2013 amendment to rule 68 by the Assembly of State Parties on prior recorded statements set out strict conditions that must be fulfilled before such evidence is allowed. Central to these conditions is that prosecution and defence were present when the statements were recorded and the statements do not touch on the accused person’s acts and conduct. The preamble to this amendment also provided that new rule was not to be applied retroactively to the detriment of a person under investigation or prosecution. These conditions do not seem to have been met in the decision.

It is on these two limbs that nobody should be condemned unheard and the strict conditions imposed for the application of rule 68 that reveals that the ICC may not necessarily be focused on justice in the matter involving Kenya. However, whatever the ICC wants to prove, it must be done within the four corners of the law. Justice is a double-edged sword, it cuts across all parties to a suit. Unless the Court operates within the framework of the rule of law, it is unlikely to deliver justice. If what the ICC desires to achieve cannot be supported by the law, then the honourable thing is to concede and take it as a learning experience. If they insist on proceeding outside the cover of the law, then the Court will a precedent of injustice and demean its standing as an independent, impartial and fair arbiter of international disputes related to crime.

Friday, September 11, 2015

Banks Sign Collective Agreement

The pressure in the Employment and labour industry continues, the latest collective agreement was signed by 43 banks who are members of the Kenya Bankers Association.

The banks negotiated through their association which is a preferred route rather than negotiating directly with the union.

Read the article here

Tuesday, August 11, 2015

Post GES 2015 : The security, investments and labour relations interplay


Kenya successfully co-hosted the Global Entrepreneurship Summit whose focus was entrepreneurship and economic growth. At the centre this effort is the government’s goal to create an environment where more jobs can be created especially for the youthful population. As more jobs are created, there will emerge more complex relations between employers and employees. Kenya has in the recent past witnessed disruptive-industrial-actions mainly in the education and health sectors. The unrest in the education sector has partly been contributed to by the threat of terrorism particularly in the northern part of Kenya. These are important events that the private sector should also endeavour to learn from. But for today let us focus on dispute resolution in the employment and labour sector and role of the judiciary through the Employment and Labour relations Court. The question, is how can the Court provide a pro-active approach that will bring stability to the labour relations even as the government continues to tackle terrorism?

History of the Employment and Labour Relations Court
Article 162 (2) (a) of the Constitution of Kenya established a specialized Court to deal with all employment and labour relations matters. This was codified through the Industrial Court Act 2011. This court has most recently changed its name to the Employment and Labour Relations Court with the status of the High Court. The Court is presided by a presiding judge and has judges who have the same status as high court judges.

The new court has witnessed two major changes. First is an extended jurisdictional scope which has been addressed with finality through precedents. It is now settled that the Court can also handle petitions for enforcement of fundamental rights and freedoms and judicial review applications. However current jurisprudential developments are interrogating the question whether judges of the employment and labour relations court can hear and determine criminal matters for instance.  Such matters would have to be within the purview of enforcing labour rights. Simultaneously with the extended jurisdiction has been the hiring of judges of the Court and decentralization of the Court to various stations in Nairobi, Mombasa, Kisumu, Nyeri and Nakuru hence devolving its reach by litigants.

Employment and Labour relations disputes in the wake of insecurity
In light of the security onslaught in the Country, the most affected group of people is employees. Teachers have for instance declined returning to their work stations, the Teachers Service Commission advertised their positions afresh (see the TSC website for a copy of the advertisement). The impulse is yet to be resolved. The employer-employee relationship has been greatly affected. This has also affected County Governments and private businesses. The response by the TSC largely signifies the response public institutions make towards insecurity. Whereas employees are concerned about their security, employers are concerned about the sustainability of their enterprises.

Amidst this, the Court continues to face the emerging challenge of back log of cases. Hypothetically, if the current statistics of cases filed in the Court are anything to go by, the Court will have serious challenges in the near future. In 2012 the Court had a back-log of 4,033 cases which if shared among the 12 judges of the Court, each judge would handle 336 cases (see the state of the Judiciary Report 2011 – 2-12). Presently, with over 2,300 cases filed in the Nairobi registry alone, securing hearing dates for urgent cases is close to impossible.

The Solution
So what is the most effective response by the employment and labour relations court to insecurity?

The solution lies in the application of Alternative Dispute Resolution Mechanisms by the employment and labour relations Court to stem the negative response to insecurity by employers and employees. Rather that resulting to litigation, the Court should embrace structured ADR to resolve such impulses. Kenya can borrow from the United Kingdom justice system that has a well-structured ADR mechanism through the Advisory, Conciliation and Arbitration Services.

Structured ADR is ideal since it will help preserve the relationship between employers and employees but also safeguarding their interests. Embedded in this proposal is a call to embrace a habit of dialogue rather that aggressive contests. If this is done within the Employment and Labour Relations sector, the number of disruptive industrial unrest will be greatly reduced which inevitably leads to greater gains for the economy.

Tuesday, May 19, 2015

How has Insecurity affected the employer-employee relations and Investments in Kenya

Kenya has sadly experienced a tide of terrorist attacks mainly in the Northern Counties of Garissa, Wajir and Mandela.

One of the critical effect of insecurity that i believe has been ignored is how insecurity has negatively stirred the job market. Kenyans from other regions have expressed concerns about their security. This has affected both the private and public sectors. But most importantly, what does is portend for devolution and national integration.

Most recently, Baringo and Turkana counties have also experienced a tide is inter-communal raids. Recalling that Turkana is at the centre-stage of ongoing oil exploration, how will insecurity disturb the job market. Finally how does such internal conflict affect economic activities and investments especially as relates to the oil sector.

These and other questions are the focus of my upcoming article.

You can post your comments and thoughts as we seek to offer solutions for our beloved country

Sunday, May 10, 2015

Adoptive Leave now proposed

Did you know that the Employment (Amendment) Bill 2015 sponsored by Senator Martha Wangari proposes to introduce Adoptive Leave.

This is leave granted once an individual or a couple adopt a child in accordance with the Children's Act. The period leave will range from 1 to 3 months depending on the age of the adopted child. Interestingly the leave can be granted to a man or woman meaning if a man adopts a child, then he will be entitled to adoptive leave if the Bill is enacted into law.

If a couple is adopting, the wife will go for the prescribed 1 - 3 months leave while the husband will be entitled to two weeks adoptive leave.

In my view this is a quite innovative bill. It highlights the way in which the Constitution has introduced a new dynamic to Employment and Labour Relations laws.

It remains to be seen whether it will be passed into law.

You can access the bill through the following link:-
Have a wonderful week.

Friday, March 27, 2015

Industrial Court not biased but firm in Law Enforcement

Another article of my artielce with specific focus on Employment and Labour Relations
This article addresses the myth that the Industrial Court is biased against employers. Enjoy

The Employment and Labour Relations Court has only been firm in enforcing the law.

Thursday, February 5, 2015

Former CEO awarded Kshs 2.4 Billion for wrongful dismissal

 Here is an interesting report of a hefty compensation awarded to the former CEO of Eco Bank. It talks of the enforcement of Labour Laws in foreign jurisdictions.


Tuesday, February 3, 2015

Industrial Court Renamed to ELRC

I thought this will be of importance to us.

With effect from last year, the Industrial Court of Kenya has since been renamed to Employment and Labour Relations Court of Kenya (ELRC)

The name change is welcome as it represents the full spectrum of the Court's mandate. The court not only intervenes in an employer-employee relationship, but it also intervenes between Trade Unions and employers or employers organisations.

Sunday, January 11, 2015

Industrial Strikes!! Urgent reforms needed to balance business and human rights

2015 has started with another strike by teachers. All attempts to forestall the strike through negotiations and Court adjudication did not bear fruit hence class rooms remain closed in all public schools. The hope in many Kenyans is that the tide of industrial actions witnessed in 2013 will not emerge again. This notwithstanding, it is critical to look at what the law talks about strikes, whether there is a less abrasive means of resolving industrial disputes and the reforms needed.

The foremost foundation for all present industrial action is the Constitution that guarantees every person the right to fair labour practices. It further gives employees the right to participate in the activities of a trade union and most importantly in this case, the right to go on strike. Previously the right to go on strike was not enshrined in the Constitution. It was and still is however recognized under International Labour Organisation’s (ILO) standards.

The Employment Act does protect employees who are members of a trade union and who engage in lawful strikes from termination. This law also allows employees to participate in the activities of a trade union. These provisions echo the Constitution and are also further enshrined in the Labour Relations Act.

The Act specifically protects the right to freedom of association for both employers and employees. It further provides for the right to collective bargaining and outlines the modalities for registration of trade unions. It also enshrines the process of recognition of trade unions by employers which then puts into motion the negotiation of a Collective Bargaining Agreement (CBA). Most importantly, it touches on the need for parties to engage in conciliation before proceeding on strike. In fact once a strike notice has been issued an employer can go to court for the strike to be prohibited if employees, through their union, have failed to engage in conciliation. However the court has powers to ask the parties to engage further in the conciliation.
Nevertheless during many strikes we have seen a narrative that has always repeated itself. Its story line proceeds as follows, a strike notice is issued, the employer invites the union for negotiations, negotiations fail to yield fruits and the employer files a case in Court just before the expiry of the notice. The court issues orders prohibiting the strike but the employees defy the court order and proceed on strike anyway. Once the strike commences, negotiations between both parties continue and hopefully the issue resolved and employees resume work.

The question of strikes is an issue of balancing between business interests or provision of public services and the rights of employees. It is generally known as the balance between business and human rights. Ultimately the state needs to continue providing public services or in the case of profit making companies, they need to make profit and hence create more employment opportunities. However on the other hand, employees need to enjoy their constitutional right to fair labour practices. They need to be fairly remunerated and treated with dignity in a way that allows them to work efficiently. These two competing interests need to have perfect harmony for us to eradicate the problem of strikes in the public and private sector.

On this note, I emphasize the need to entrench more alternative dispute resolution mechanisms that should be pursued before a strike is declared. Presently the law does not give a prominent position to conciliation but only presents it as one of the means of resolving industrial disputes. It seems that whether conciliation takes place or not, employees are still guaranteed to go on strike. However it would be important to reform the law relating to industrial actions so that parties can engage in negotiations and mediation before resulting to strikes.

On the role of the Industrial Court, as observed, employees still disobey Court orders prohibiting strikes. The court should not be so quick to declare a strike illegal. Instead it should focus on playing a supervisory role in the negotiations between parties. It should provide strict timelines within which parties must agree. The Industrial court should embrace ‘court-mandated-alternative dispute resolution’. To this end any return to work formula should be registered in Court to ensure future compliance.

The alternative to this is to entrench a more pro-active role for labour officers. Their mandate during the conciliation proceedings should be enhanced and their decisions adopted and registered in Court. The capacity of Labour Officers to conduct proper conciliation proceedings needs to be improved. More training and provision of infrastructure where proceedings will take place are urgent needs.

Ultimately the question of labour relations management is founded on the need to balance business and human rights. It is critical for all players to accommodate an appropriate balance to ensure the speedy resolution of industrial actions. The core institutions, the Industrial Court and the Ministry of Labour, should also play a more pro-active role in resolving the disputes between employers and employees.

We all hope that the current strike stalemate can be resolved expeditiously so that our children continue enjoying their right to education.