Benson Omwala Oduor v Sec, BOG Equator Special School [2015] KEELRC 318 (KLR)
The bottom line
#A Kenyan court allowed a guard's redundancy to proceed but ordered his severance pay increased to match a colleague's, because unequal pay was discriminatory.
What this practically means
#Executive summary
#Key legal issues
#Validity of the redundancy under Section 40 of the Employment Act
The court found the redundancy was properly initiated following outsourcing of security services; the Claimant gave no evidence-based reasons to justify stopping it
The Respondent deponed that losses of school property led the Board to outsource security services through a tender awarded to Frontmac Holdings Ltd, necessitating the Claimant's redundancy. The Claimant's assertions of secrecy and cover-up were unsupported by evidence, and his age and the claim's prayers (underpayments, overtime) were irrelevant to redundancy since they did not depend on continued employment.
Discrimination in severance pay between the Claimant and his colleague Daniel Oloho
Paying the Claimant half a month's salary per year worked while Oloho received one month's salary per year worked was discriminatory; the court ordered equal computation
The court examined exhibits 5 and 6 to the replying affidavit and found an unexplained disparity in the severance basis between two employees in the same class affected by the same redundancy. Discrimination is prohibited by the Constitution and the Employment Act, so the court sua sponte ordered the Claimant's benefits recomputed at the higher rate.
Relationship between interlocutory application and prayers in the main claim
The injunction sought was unrelated to the main claim's prayers, which could be pursued regardless of the Claimant's continued employment
The court observed that the memorandum of claim sought underpayments, overtime and payment for extra duties, which are monetary claims not dependent on remaining in employment. The interim injunction to restrain redundancy therefore lacked connection with the suit, weakening the application for interlocutory relief.
Legal principles established
#- An employer must comply with the conditions in Section 40 of the Employment Act before terminating on account of redundancy
- Paying different rates of severance pay to similarly situated employees constitutes prohibited discrimination under the Constitution and the Employment Act
- An ex parte order reinstating a terminated employee cannot be granted
Court orders
#- 1.The Claimant's application is dismissed
- 2.The ex-parte orders granted on 27th November, 2014 are discharged
- 3.Each party shall bear its own costs of the application
- 4.The Claimant's severance pay is recomputed on the basis of one month's salary per year worked, as was done for Daniel Oloho, comprising one month's salary in lieu of notice, accrued leave and severance pay for 10 years' service
- 5.The Claimant to be issued with a certificate of service
- 6.The Claimant to clear with the Respondent in exchange for payment of the redundancy benefits and to set down the main claim for hearing
- Jurisdiction invoked
- Employment and labour relations jurisdiction under the Employment Act and Industrial Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benson Omwala Oduor v Sec, BOG Equator Special School [2015] KEELRC 318 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/318/eng@2015-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.