George Omondi Otieno v Valley Confectionery Limited [2014] KEELRC 1132 (KLR)
The bottom line
#A Kenyan court ruled a guard's 'redundancy' dismissal was fake and unfair, awarding him 12 months' salary plus leave, notice and severance dues.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness and genuine reason for termination on redundancy
Termination was procedurally unfair and the reason not genuine; claimant awarded 12 months' gross salary (Kshs.96,586.20)
The court found no notice of intended termination was given and the respondent never prepared the claimant for the looming redundancy, breaching section 40 of the Employment Act. The respondent also failed to demonstrate that security services were actually outsourced, and evidence showed a replacement (Maina) was hired, so the redundancy reason was not genuine under section 43. Having not contributed to the termination, the claimant received maximum compensation of 12 months' gross salary.
Length of service
Claimant's evidence that he was employed from 2.2.2007 was credible despite the change of company name
The claimant gave a coherent account of continuous service at the enterprise known as Valley Bakeries and later the respondent after a change of name, including payments made to other staff at the change. The respondent's witness contradicted himself, placing the claimant's employment in April 2011 before the respondent commenced operations in May 2011. That contradictory evidence could not be trusted, so the earlier employment date was accepted.
Annual leave
Claimant entitled to leave for 5 years at Kshs.24,664.40 as prayed
Section 28 entitles an employee to not less than 21 working days' leave with full pay. The claimant was neither granted leave nor paid in lieu, and the respondent filed no documents on leave either before or after the change of name. In those circumstances the court had no reason to doubt the claim for five years' leave and awarded the amount prayed for.
Notice pay
Claimant entitled to one month's salary in lieu of notice, Kshs.8,048.85
No termination notice was ever served on the claimant. The respondent relied on a letter directing the claimant to proceed on leave from 3.4.2012 to 30.04.2012, but the claimant's unrebuted evidence was that he was verbally terminated on 2.03.2012, and the letter came long after the dismissal. Notice pay as prayed was therefore awarded.
Severance pay
Severance pay of Kshs.17,497.50 awarded as prayed
Although the respondent alleged redundancy and paid only Kshs.1,040.00 as purported severance, the court found it gross injustice that the respondent failed to prepare the claimant for the redundancy despite satisfactory and good service. The sum of Kshs.17,497.50 claimed was considered reasonable and just in the circumstances and was awarded in full.
Legal principles established
#- An employee terminated on account of redundancy is entitled to the due process and payments set out in section 40 of the Employment Act, 2007
- Under section 28 of the Employment Act an employee is entitled to not less than 21 working days of leave with full pay
Court orders
#- 1.A declaration that the termination of the claimant's employment by the respondent was unfair
- 2.The respondent to pay the claimant Kshs.146,796.75 by 1.08.2014, failing which interest at court rates from the date of judgment till full payment
- 3.The respondent to pay costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Omondi Otieno v Valley Confectionery Limited [2014] KEELRC 1132 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1132/eng@2014-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.