Barclays Bank of Kenya Ltd & another v Gladys Muthoni & 20 others [2018] KECA 718 (KLR)

The contracts of service were signed with BBK, which paid the salaries. The trial court expressly recognised the respondents as BBK employees before deployment to BAGL. BAGL was joined because the symbiotic relationship between the two companies made it necessary for effective determination of all issues. The first ground of appeal therefore had no firm basis.

Although the Court accepted the disputed letter was intended as a redundancy notice giving over two months' notice, the employer was obliged to give the reasons and extent of the redundancy at least one month before effect, and to serve the Labour Officer. The appellants made only a bare assertion of service on the Labour Officer, and in the absence of proof the Court found there was no service, rendering the notice invalid.

Although the Employment Act is silent on consultation with non-unionisable employees, the Court found the dicta of Maraga and Murgor JJ.A in the Kenya Airways case resonate with the Constitution and domesticated international law under Article 2(6). Article 41 on fair labour practices supports real, not cosmetic, consultation, in good faith, before redundancy notices issue.

The trial court found the employer's business remained intact, the nature of business and technical support had not changed, and only the location of BAGL's operations was changing. No evidence was laid on the positions previously held by the respondents before redeployment. On a first appeal, the Court found no basis to disturb that finding, and the questions of substantial justification and fair implementation were answered in the negative.

The prayers for disclosure of criteria and documents were neither granted nor pursued, so the appellants were under no compulsion to produce documents. The respondents filed further affidavits without leave and never sought oral evidence tested in cross-examination. The affidavits fell short of proving so serious a charge; a petition by way of declarations was an inappropriate vehicle for such proof.

The award of 10 months' gross salary fell within section 49 of the Employment Act and the trial court laid a proper basis for it; appellate interference with judicial discretion requires demonstrated misdirection. The discrimination damages dissipated with the overturned finding, and aggravated damages lacked proof of malice. The other awards mirrored the appellants' own exit package offers.

There was no formal application for hearing and determination; the matter was fixed for mention. While the Court declined to delve into functus officio and bias, settled authority holds that substantive matters cannot be determined on a mention date unless the parties agree. The fourth, most drastic order determining computation of dues on contentious documents breached that rule.