David Ndavah Kamzee v Ol Tukai Lodges Limited [2014] KEELRC 1424 (KLR)
The bottom line
#A Kenyan court ruled a lodge manager's redundancy unfair because his employer skipped the legally required one-month written notice, awarding him Kshs.680,000.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy complied with Section 40 of the Employment Act
The redundancy was unfair because the mandatory procedure in Section 40(1) was not followed
Section 40(1)(b) requires an employer to notify the employee personally in writing and the labour officer of the reasons and extent of the intended redundancy not less than one month before termination. Here the Claimant was terminated effective the date of the letter, while on leave, and only learnt of his termination from the accountant. The authority relied on by the Respondent concerning Section 45(3) was inapplicable as it concerned unfair termination, not redundancy.
Whether reinstatement should be ordered
Reinstatement was refused
Although the Dalmas Ogoye position against reinstatement is no longer good law given statutory recognition of the remedy, reinstatement remains subject to Section 49(4)(d) requiring exceptional circumstances for specific performance of a contract of service. None were pleaded, and the 3-year window under Section 12(3)(vii) of the Industrial Court Act had lapsed.
What compensation is payable for the unfair redundancy
4 months' salary at Kshs.170,000, i.e. Kshs.680,000
The Claimant sought 12 months' salary at Kshs.215,000. The court found this excessive for service of less than a year, but considered the aggravating circumstances of termination while on leave without Section 40(1)(b) notice and following demotion and salary reduction. The rate was pegged at Kshs.170,000, the salary at which settlement had been made.
Legal principles established
#- An employer must strictly comply with the notification procedure in Section 40(1) of the Employment Act, including at least one month's prior written notice to the employee and the labour officer, failing which a redundancy is unfair
- Reinstatement is a statutory remedy under Section 49(3) of the Employment Act and Section 12(3)(vii) of the Industrial Court Act, available only within 3 years of termination and subject to the common law bar on specific performance of contracts of service absent exceptional circumstances
- Damages for unfair redundancy may be pegged on the salary rate at which terminal benefits were settled, not the higher previously held rate
Court orders
#- 1.Prayer for reinstatement dismissed
- 2.Damages of 4 months' salary at Kshs.170,000 per month, totalling Kshs.680,000, awarded for unfair redundancy
- 3.Costs awarded to the Claimant on both the amount payable under the consent agreement and the court order
- 4.Interest on the amount awarded at court rates from the date of judgment to payment in full
- Jurisdiction invoked
- Industrial Court Act, Section 12
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Ndavah Kamzee v Ol Tukai Lodges Limited [2014] KEELRC 1424 (KLR)", Case Analysis (2014). Memorandum of Claim dated 8th February 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1424/eng@2014-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.