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ELRCPartially AllowedCause No. 2032 of 2012· [2013] KEELRC 43 (KLR)

William Sammy Masila v Twiga Construction Company Limited [2013] KEELRC 43 (KLR)

Industrial Court of Kenya
20 December 2013
DMD.K.N. Marete
816 words in judgment
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The bottom line

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A Kenyan employer claiming redundancy must prove it with evidence — Twiga Construction paid for failing to, in an unfair dismissal award.

What this practically means

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Executive summary

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The claimant, employed as a carpenter at Ksh.530 per day, alleged that on 25th February 2012 the respondent's Site Manager told him not to report back to work, terminating his services unlawfully, unfairly and inhumanely without payment of terminal benefits. He sought a declaration of unfair termination, terminal dues and compensatory damages totalling Ksh.263,640, plus costs and interest. The respondent admitted part of the claim, asserting the termination was a redundancy of which the union and the Ministry of Labour had been notified more than a month prior, in compliance with s.40 of the Employment Act, 2007. It conceded notice pay of Ksh.13,780 and leave entitlements of Ksh.28,752.50, and contended all statutory dues had been paid. The respondent called no witnesses. The court framed three issues: the legality of the termination, entitlement to relief, and costs. Holding that the redundancy defence was a mere allegation unsupported by evidence, the court found ss.40, 43 and 45 of the Employment Act flouted and established unfair termination. It awarded one month's notice pay (Ksh.15,900), leave pay for the entire service period (Ksh.47,700), service pay for one year (Ksh.9,540) and six months' compensation (Ksh.95,400), totalling Ksh.168,540, and ordered the respondent to bear the costs of the cause. Judgment was delivered on 20th December 2013 by D.K. Njagi Marete, Judge.

Key legal issues

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01

Whether the termination was a lawful redundancy or an unfair dismissal

Holding

The termination was unfair and unlawful; the redundancy defence failed for want of evidence

Reasoning

The respondent relied on redundancy, asserting that the union and Ministry of Labour were notified and that s.40 of the Employment Act, 2007 was complied with. However, the respondent called no witnesses and adduced no evidence supporting the redundancy. The court held that the allegation was unproven and that ss. 40, 43 and 45 of the Employment Act were flouted, establishing unfair termination.

p. 2
02

Whether the claimant is entitled to the relief sought

Holding

Yes; notice pay, leave pay, service/gratuity and six months' compensation were awarded

Reasoning

Having found unfair termination, the court awarded the terminal dues claimed: one month's salary in lieu of notice, leave pay for the entire duration of service, service pay for the year NSS.F was not remitted, and six months' salary as compensation for unfair termination, totalling Ksh.168,540.00.

p. 2

Legal principles established

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  • An employer alleging redundancy must adduce evidence of compliance with s.40 of the Employment Act; bare allegations of redundancy without evidence establish unfair dismissal.

Court orders

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  1. 1.Payment of one month's salary in lieu of notice of Ksh.15,900.00
  2. 2.Payment in lieu of untaken leave for entire duration of service of Ksh.47,700.00
  3. 3.Service/gratuity for 1 year when N.S.S.F was not being remitted of Ksh.9,540.00
  4. 4.Six months' compensation for unfair termination of employment of Ksh.95,400.00
  5. 5.Total award of Ksh.168,540.00
  6. 6.Costs of the cause to be borne by the respondent

Authorities

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Legislation

  • Employment Acts.40
  • Employment Acts.43
  • Employment Acts.45
Jurisdiction invoked
Industrial Court of Kenya jurisdiction over employment and labour relations disputes (Cause No. 2032 of 2012)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "William Sammy Masila v Twiga Construction Company Limited [2013] KEELRC 43 (KLR)", Case Analysis (2013). Cause No. 2032 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/43/eng@2013-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.