Loice Rose Obengo v Nyanza Reproductive Health Society [2013] KEELRC 223 (KLR)
The bottom line
#A Kenyan court ruled that disguising a firing as 'redundancy' without following redundancy rules was unlawful, awarding the employee Kshs 674,500.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's contract was lawful and fair
The termination was unlawful and unfair ab initio because the Respondent disguised a termination for alleged misconduct as abolition of office, in violation of sections 40, 43(1) and 45(2) of the Employment Act
The letter of termination stated the position was abolished following restructuring, amounting to redundancy. The court examined the reasons and found the office was abolished due to alleged incompetence and a new undefined position was created inviting re-application, indicating bad faith. No notice was given to the labour officer or the employee, no selection criteria were applied, and no severance was paid as section 40 requires. The Respondent failed to prove a valid reason under section 43(1), and the termination was not in accordance with fair procedure under section 45(2)(a) and (c).
Whether the Claimant was owed December 2011 salary
The Claimant was owed Kshs 69,300 being salary for December 2011
The Claimant testified on oath that she was not paid December 2011 salary. The Respondent, as custodian of employment records, had a duty to rebut this evidence by producing a payslip for that month but did not do so. In the absence of rebuttal the court accepted the Claimant's uncontroverted evidence and found the month's salary due.
Whether the Claimant was entitled to compensation for the unexpired term of the contract
The court awarded compensation equivalent to 7 months' salary (Kshs 485,100) under section 49(1)(c) of the Employment Act instead of the full unexpired term
The court invoked section 12(3) empowering it to award compensation. Although the Claimant prayed for the unexpired term of 7 months (Kshs 315,000), the court found the contract was unlawfully breached, that her career prospects were cut short and she lost income and entitlements until 31 July 2012, and exercised discretion to award 7 months' salary as compensation for the unlawful termination under section 49(1)(c).
Legal principles established
#- A termination disguised as abolition of office (redundancy) without complying with section 40 of the Employment Act is an unlawful and unfair termination
- Redundancy requires notification to the labour officer and the employee, fair selection criteria, notice pay and severance pay at not less than 15 days' pay per completed year of service
- The employer bears the burden of proving the reason for termination under section 43(1) of the Employment Act, and the employee need only prove the termination on a balance of probabilities under section 47(5)
Court orders
#- 1.Respondent to pay the Claimant one month's salary in lieu of notice in the sum of Kshs 69,300
- 2.Respondent to pay Kshs 50,800 being payment in lieu of 22 days leave
- 3.Respondent to pay Kshs 69,300 being salary for December 2011
- 4.Respondent to pay compensation equivalent to 7 months' salary in the sum of Kshs 485,100 under section 49(1)(c) of the Employment Act
- 5.Total award of Kshs 674,500
- Jurisdiction invoked
- Section 12(3) of the Employment Act empowering the court to order specific performance and/or award compensation
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- James Shakombo v Simba Telecom Limited [2022] KEELRC 582 (KLR)[2022] KEELRC 582 (KLR)10 Mar 2022
- Jane Mariziah Indondo v Islamia Madrasa Society [2022] KEELRC 1053 (KLR)[2022] KEELRC 1053 (KLR)20 Jan 2022
- Benson Ndwiga Njue & 108 others v Central Glass Industries Limited [2019] KEELRC 2429 (KLR)[2019] KEELRC 2429 (KLR)24 Jan 2019
- James Nthenge v Olive Gardens Limited [2015] KEELRC 1209 (KLR)[2015] KEELRC 1209 (KLR)23 Mar 2015
- Elizabeth Tumaini Adhola v Management Board of St. Mary’s School [2015] KEELRC 1547 (KLR)[2015] KEELRC 1547 (KLR)25 Feb 2015
- Elizabeth Tumaini Adhola v Management Board of St. Mary’s School [2015] KEELRC 1547 (KLR)[2015] KEELRC 1547 (KLR)25 Feb 2015applied
Cite this brief
#Cite this brief
Caselaw, "Loice Rose Obengo v Nyanza Reproductive Health Society [2013] KEELRC 223 (KLR)", Case Analysis (). Cause No 736 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/223/eng@2013-08-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.