Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 2286 of 2012· [2014] KEELRC 766 (KLR)

David Mutevu & 103 others v Africa Nazarene University [2014] KEELRC 766 (KLR)

Industrial Court of Kenya
13 February 2014
MMM. Mbaru
7,579 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

#

Kenya's Industrial Court ruled the university's redundancy unfair because it skipped a mandatory advance notice, awarding each affected employee three months' salary.

What this practically means

#

Executive summary

#
104 former employees of Africa Nazarene University claimed compensation of 12 months' salary for unfair redundancy following the university's 2011 restructuring, in which the transport, security, estate, catering and institutional services departments were declared redundant and outsourced. The parties agreed the 1st claimant would testify for all; the respondent called two witnesses and played a DVD of a staff meeting held on 22nd August 2011. The respondent argued there was no evidence for the 2nd to 104th claimants absent a Rule 9 application, that proper notice was issued, terminal dues paid, and that last-in-first-out was applied. The court held the unopposed directions to hear one claimant were proper and the case would be decided on the merits. Applying section 40 of the Employment Act, the court distinguished the general notice of intended redundancy under section 40(1)(b) from the personal termination notice under section 40(1)(f), and found the mandatory general notice was never issued despite the respondent having contemplated restructuring since 2005-2008. The redundancy was therefore unfair. Under section 49, given full and prompt payment of terminal dues, one month's pay in lieu of notice, and other substantial compliance, each affected claimant was awarded three months' salary as compensation. The claims of the 11th and 50th claimants (terminated for other reasons) were dismissed with costs, and the 96th claimant's claim was struck out for want of a formal amendment. Certificates of service were found to have been issued. Judgment was entered for the claimants on 13th February, the printed year 2012 appearing to be a typographical error for 2014.

Key legal issues

#
01

Whether hearing one claimant on behalf of 104 claimants without a Rule 9 application vitiated the proceedings

Holding

It did not; directions were given unopposed at the first hearing and the case proceeds on the merits.

Reasoning

At the first hearing on 8th May 2013 the court directed the 1st claimant to be the sole witness and the respondent raised no objection at that point. Under section 3 of the Industrial Court Act these were reasonable directions in the circumstances. Objections to the process should have been raised before the claimant testified; procedural complaints cannot defeat the substance of the claims.

p. 11
02

Whether the redundancy complied with section 40 of the Employment Act

Holding

It did not; the mandatory first notice under section 40(1)(b) was never issued, rendering the redundancy unfair.

Reasoning

The respondent knew from 2005-2008 of the need to reorganise yet issued no notice until one month prior to termination. The notice under section 40(1)(f) is distinct from the notice under section 40(1)(b), which alerts employees that a redundancy process is commencing. No such general notice appeared in the record, and the meeting of 22nd August 2011 could not substitute for it.

p. 14
03

What remedies flow from the unfair redundancy

Holding

Compensation of 3 months' salary per claimant under section 49, given the respondent's substantial compliance otherwise.

Reasoning

Terminal dues were paid immediately, one month's pay in lieu of notice was given, and some claimants still do business with the respondent. The sole lapse was the non-issuance of the mandatory notice. Balancing these factors under section 49, three months' salary for each affected claimant was fair and just, based on last salary earned.

p. 14

Legal principles established

#
  • The notices under section 40 of the Employment Act are mandatory, and there are two distinct notices: a general notice of the intended redundancy and a personal termination notice to the affected employee.
  • One representative claimant giving evidence with court directions suffices for multiple claimants despite non-invocation of Rule 9, the case being decided on the merits.

Court orders

#
  1. 1.The claims with regard to claimant 11 and 50 are dismissed with costs to the respondent
  2. 2.The 96th claimant claim is struck out with costs to the respondent
  3. 3.A declaration that the 1st to the 104th (noting (a) and (b) above) claimants redundancy process was unfair
  4. 4.Each claimant as (c) above is awarded 3 months' salary as compensation, based on the last salary earned by each claimant
Jurisdiction invoked
Industrial Court Act, section 3; Employment Act sections 40 and 49

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (5)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "David Mutevu & 103 others v Africa Nazarene University [2014] KEELRC 766 (KLR)", Case Analysis (2014). Cause No. 2286 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/766/eng@2014-02-13

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