Isabella Harusi Shehe v Branch Secretary, Kenya National Union of Teachers (Kilifi Branch) & Secreatary General, Kenya National Union of Teachers (Cause 53 of 2013) [2013] KEELRC 684 (KLR)
The bottom line
#A Kenyan court upheld a KNUT employee's redundancy but ordered the union to pay her over Kshs 671,000 in severance and arrears, while older claims were time-barred.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy termination was wrongful and unfair
The termination was substantially in compliance with the law and therefore fair; the Claimant was notified in writing and the letter was copied to the Local Labour Officer.
Section 40 of the Employment Act prescribes the procedure for redundancy. The Claimant was notified in writing and the termination letter was copied to the Local Labour Officer. The Kilifi branch had been split into Kilifi, Malindi and Kaloleni branches, justifying the redundancy. The notice given (2 months and three weeks) fell just about a week short of the three months' notice in the contractual terms, but the court found substantial compliance with both statute and contract.
Entitlement to severance pay
The Claimant was entitled to severance pay at fifteen days' pay per year of service under section 40(1)(g) of the Employment Act, computed at Kshs 430,920/- for 27 years.
The terms and conditions of service contained no clause providing for severance on redundancy, so section 40(1)(g) of the Employment Act was implicated as a statutory minimum. Using the formula of basic salary plus housing allowance divided by 26, the daily rate was Kshs 1,064; 15 days multiplied by 27 years yields 405 days' pay, amounting to Kshs 430,920/- rather than the Kshs 466,439.87 pleaded.
Limitation of historical claims
Claims for gratuity 1991-2001, salary arrears 1998-2003, commuter allowance arrears 1997-2003 and housing allowance arrears 1999-2002 were time barred.
The Claimant admitted in cross-examination that gratuity was payable every five years following the Respondents' officials' election cycle. The court applied section 4(1) of the Limitation of Actions Act and section 90 of the Employment Act to bar the older claims, but held that claims for salary arrears 2005, TME 2002-2006 and gratuity 2002-2006 were filed within the six-year limitation period and were payable based on a 2006 admission letter.
Legal principles established
#- Section 40 of the Employment Act sets statutory minimum entitlements on redundancy: payment in cash of due leave, notice pay of not less than one month in lieu of notice and severance pay of not less than fifteen days pay for each completed year of service.
Court orders
#- 1.Severance pay for 405 days (27 years) at Kshs 430,920/-
- 2.Salary arrears for 2005 of Kshs 46,029/-
- 3.Gratuity TME 2002-2006 of Kshs 165,122/-
- 4.Gratuity 2002-2006 of Kshs 117,784.80
- 5.Total award Kshs 759,855.80 less Kshs 88,000/- already received, i.e. Kshs 671,855.80
- 6.No order as to costs
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Industrial Court); Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isabella Harusi Shehe v Branch Secretary, Kenya National Union of Teachers (Kilifi Branch) & Secreatary General, Kenya National Union of Teachers (Cause 53 of 2013) [2013] KEELRC 684 (KLR)", Case Analysis (2013). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/684/eng@2013-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.