Mara Ison Technologies Kenya Limited v Muriel Ogoudjobi [2019] KECA 106 (KLR)
The bottom line
#Kenya's Court of Appeal cut an unfair termination award but confirmed employers must strictly follow redundancy rules and prove every shilling claimed.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy declaration was lawful
The procedure adopted by the appellant in declaring the respondent redundant was improper and not in accordance with the law; the employer first asserted a fixed-term contract and, when resisted, devised a redundancy reason, entitling the respondent to compensation.
The court examined the shifting positions of the appellant between June 2014 (contract ending by effluxion of time) and August 2014 (redundancy), and the treatment of the respondent's extended maternity leave by the new management. It concluded there was a determined decision to remove the respondent, and that the redundancy process failed to comply with section 40 of the Employment Act, rendering the termination unlawful.
Duplication of notice claims under sections 40(1)(a) and 40(1)(f)
A respondent cannot claim notice pay twice; the claim under section 40(1)(a) duplicated the claim under section 40(1)(f), but the contractually agreed two months' salary in lieu of notice was payable as pleaded and proved.
Section 40(1)(a) concerns notice to the labour officer (and union where applicable) while section 40(1)(f) requires one month's notice or wages in lieu to the employee. The appellant itself gave two months' notice and tabulated two months' salary in lieu, acknowledging the contractual notice period, so the two months' notice pay was properly payable but not both claims.
Standard of proof for special damages
Claims for telephone reimbursement, relocation expenses and a return air ticket are special damages requiring specific pleading and strict proof; they failed absent proof of payment or quantification.
Although an email on record showed approval of the telephone claim, only invoices were produced without proof of payment. Similarly, the relocation and air ticket claims lacked evidence of amounts. The court held such claims should not have been allowed without meeting the required standard of proof.
Quantum of compensation for unlawful termination
The maximum award of 12 months' salary was set aside and substituted with 4 months' salary compensation because the trial judge gave no reasons for the maximum award and the employer's conduct was not callous or capricious.
Following Olpejeta Ranching Limited v David Wanjau Muhoro, the court held that a maximum award must rest on sound judicial principles and assigned reasons. Finding the appellant's improper but not callous or capricious conduct, the court reduced compensation to 4 months' salary as proportionate.
Retrospective termination date
The employer could not make a termination effective retrospectively; the respondent was entitled to salary only from 25th July, 2014 to 21st August, 2014, the date of the termination letter.
The termination letter of 21st August, 2014 purported to give two months' notice effective 25th July, 2014. The court held there was no authority under employment laws to backdate a termination, so salary was payable only up to the date of the letter.
Legal principles established
#- On a first appeal, the Court reconsiders and re-appraises the evidence and draws its own conclusions, giving the parties a retrial, while making due allowance for not having seen or heard the witnesses.
- Section 40(1) of the Employment Act mandatorily requires compliance with seven conditions before termination on account of redundancy, including one month's notice to the employee and the labour officer, payment of leave due, notice or wages in lieu, and severance pay at not less than 15 days per completed year of service.
- An employer cannot make a termination effective retrospectively; termination takes effect from the date of the termination letter.
- Special damages must be specifically pleaded and strictly proved; invoices alone without proof of payment do not suffice.
- A maximum award of 12 months' gross salary compensation for unfair termination must be justified by reasons; an unexplained maximum award invites appellate intervention.
Court orders
#- 1.US$7,040 being salary for the period 25th July, 2014 to 21st August, 2014
- 2.US$14,080 being two months' salary in lieu of notice
- 3.US$13,845 for accrued leave
- 4.US$10,560 being severance pay
- 5.Four (4) months' salary being compensation for unlawful termination
- 6.Certificate of service to be issued to the respondent
- 7.Appellant to have ¼ costs of the appeal
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC Cause No. 2089 of 2014
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules (Rule 29), from a decision of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- NHIF Board of Management v Wakhu (Civil Appeal 54 of 2018) [2023] KECA 1590 (KLR)[2023] KECA 1590 (KLR)9 Jun 2023applied
- Millicent Nyambura Njoroge v Flamingo Horticulture (K) Limited [2021] KEELRC 1948 (KLR)[2021] KEELRC 1948 (KLR)18 Mar 2021
- Millicent Nyambura Njoroge v Flamingo Horticulture (K) Limited [2021] KEELRC 1948 (KLR)[2021] KEELRC 1948 (KLR)18 Mar 2021
Cite this brief
#Cite this brief
Caselaw, "Mara Ison Technologies Kenya Limited v Muriel Ogoudjobi [2019] KECA 106 (KLR)", Case Analysis (2019). Civil Appeal No. 93 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/106/eng@2019-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.