Stephen Musyoka Muia v Munyiri 64 Traders Limited T/A Munyiri Fish & Chips [2014] KEELRC 829 (KLR)
The bottom line
#A Kenyan court ruled an employer's redundancy unfair because it ignored mandatory notice and severance rules, awarding the worker Kshs. 43,200.
What this practically means
#Executive summary
#Key legal issues
#Mode of termination - redundancy or abandonment
The Claimant's employment was terminated by way of declaration of redundancy, since the Respondent adduced no evidence that the Claimant was recalled and refused to resume duty.
It was common ground that the business closed for renovation. The dispute was whether the Claimant was recalled. The Respondent alleged recall and refusal to resume on 1st March 2011 and relied on a letter of 31st December 2009, which the Claimant denied receiving. With no evidence supporting the Respondent's assertion of recall, the Court accepted the Claimant's account and found the termination was a redundancy.
Compliance with Section 40 procedural requirements for redundancy
The termination was unfair under Section 45 because none of the Section 40 conditions was met.
Section 40 requires notification of the union/labour officer or the employee personally in writing, due regard to seniority, skill and reliability in selection, payment of accrued leave, not less than one month's notice or wages in lieu, and severance pay of at least fifteen days' pay per completed year. The Court found no evidence of compliance with any of these conditions, rendering the termination unfair.
Entitlement to remedies
The Claimant was awarded three months' salary compensation, one month's notice pay and leave pay, but denied service pay due to NSSF membership.
Following the finding of unfair termination, the Court exercised its discretion under the Employment Act to award the equivalent of three months' salary in compensation and one month's salary in lieu of notice. The unchallenged leave pay claim (42 days based on 8,000/30x42) succeeded for want of leave records, while service pay was refused because NSSF membership precluded it. The award was made subject to statutory deductions under Section 49(2).
Legal principles established
#- Where an employer alleges that an employee was recalled but declined to resume duty, it bears the evidential burden; absent supporting evidence, the employee's account is adopted.
- Termination on account of redundancy is unfair unless the employer complies with the conditions set out in Section 40 of the Employment Act, 2007.
- An employee who is a member of NSSF is not entitled to service pay.
- Where an employer fails to produce leave records to counter a leave pay claim, the claim succeeds.
Court orders
#- 1.Award of 3 months' salary in compensation for unfair termination (Kshs. 24,000)
- 2.Award of 1 month's salary in lieu of notice (Kshs. 8,000)
- 3.Award of leave pay (8,000/30x42) of Kshs. 11,200
- 4.Total award of Kshs. 43,200
- 5.Claimant entitled to a certificate of service
- 6.Respondent to meet the costs of the case
- 7.Award subject to statutory deductions in accordance with Section 49(2) of the Employment Act, 2007
- Jurisdiction invoked
- Employment and labour relations jurisdiction over a claim for unfair termination and terminal dues (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Musyoka Muia v Munyiri 64 Traders Limited T/A Munyiri Fish & Chips [2014] KEELRC 829 (KLR)", Case Analysis (2014). Cause No 1564 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/829/eng@2014-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.