Peter Kamau Kiarie v Keroche Breweries Ltd [2015] KEELRC 402 (KLR)
The bottom line
#A Kenyan court ruled Keroche Breweries' redundancy was unfair simply because it failed to give the employee one month's written notice before terminating him.
What this practically means
#Executive summary
#Key legal issues
#Compliance with section 40 of the Employment Act in redundancy
The redundancy was unlawful and unfair because the Claimant was not given one month's written notice of the intended redundancy
Section 40 prescribes seven conditions for redundancy. For a non-unionised employee, the relevant ones are written notice one month in advance, consideration of seniority, skills, ability and reliability, and payment of accrued leave, one month's wage in lieu of notice and severance pay. The Claimant received no one-month written notice; the meeting of 13 May 2014 and the termination letter of 14 May 2014, effective around 4 June 2014, fell short of the statutory notice period. This singular failure rendered the termination unfair.
Burden of providing particulars and records of terminal dues in employment disputes
The employer, not the employee, bears responsibility for employment records; the Rift Valley Railways position is misplaced in employment law
The Respondent relied on Rift Valley Railways (K) Ltd v Kiya Kalakhe Boru for the proposition that claimants must provide particulars and material details of terminal dues and produce employment records. The Court held such a position belongs to the civil procedure regime, not employment law, citing sections 9, 10 and 13 of the Employment Act, since the employer ordinarily keeps employment records, implicating sections 108 and 112 of the Evidence Act.
Compensation for unfair redundancy where severance pay has been awarded
Considering the severance pay already awarded and offered, compensation of 2 months' wages (Kshs 40,000/-) was appropriate
Having found the termination unfair, compensation is a primary but discretionary remedy. The Court noted it had already awarded severance pay and that the Respondent had offered it. Weighing this, the Court exercised its discretion to award the equivalent of two months' wages as compensation, assessed at Kshs 40,000/-, with the Kshs 111,335/- already paid to the Claimant deducted from the total award.
Legal principles established
#- An employer must give an employee one month's written notice of intended redundancy under section 40(1)(b) of the Employment Act; a meeting or a termination letter issued the following day does not satisfy this requirement.
- The cash equivalent of accrued leave is computed by dividing the basic wage by 26 to get the daily rate, then multiplying by the number of leave days.
- The obligation to provide particulars and records of terminal dues rests on the employer, who ordinarily maintains employment records; that burden cannot be shifted to the employee under the employment law regime.
Court orders
#- 1.Declaration that the termination of the Claimant's employment through redundancy was unfair and unlawful
- 2.Respondent to pay the Claimant accrued leave of Kshs 156,153/-
- 3.Respondent to pay the Claimant severance pay of Kshs 126,923/-
- 4.Respondent to pay the Claimant compensation equivalent of 2 months wages of Kshs 40,000/-
- 5.Total award of Kshs 323,076/- less Kshs 111,335/- already paid, leaving Kshs 211,741/- due
- 6.Costs denied to the Claimant for failure to file and serve submissions as directed
- Jurisdiction invoked
- Jurisdiction under the Employment Act, 2007 over a claim of unfair and unlawful termination of employment through redundancy
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kamau Kiarie v Keroche Breweries Ltd [2015] KEELRC 402 (KLR)", Case Analysis (2015). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/402/eng@2015-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.