Alice Muchemi v Nakuru Crater Pure Water Bottlers Ltd [2015] KEELRC 1480 (KLR)
The bottom line
#A Kenyan court ruled a worker's redundancy was unfair because her employer skipped the legal notice steps, and awarded her modest compensation.
What this practically means
#Executive summary
#Key legal issues
#Identity of the employer
On the totality of circumstances, it was more probable the Claimant was employed by the Respondent from 2004; in the alternative, Margaret Muthoni Kabiru after taking over the business
There was no direct evidence or documentation proving who employed the Claimant. The Respondent relied on single business licences in the name of a business belonging to a deceased director, but failed to disclose when that business name was registered or produce licences from 2006. The statutory definition of employer includes agents and managers, making it probable the Respondent was the employer.
Deciding on an unpleaded issue (redundancy)
Although the case was pleaded as unfair termination, the Court could treat and decide it as redundancy since the Respondent's own witnesses raised it and no injustice would result
The Claimant pleaded unfair termination, not redundancy, but the Respondent's own witnesses testified in examination in chief that the carpentry workshop was closed down and employees informed at a meeting. Applying Odd Jobs v Mubia, the Court may base its decision on an unpleaded issue left to it at trial; the Respondent would suffer no prejudice.
Fairness of the redundancy
The termination through redundancy was unfair because the conditions in section 40 of the Employment Act, 2007 were not complied with
Section 40 requires one month's written notice in advance and notification of the labour officer. There was no suggestion any of these conditions were complied with, so the redundancy was unfair.
Appropriate remedies for unfair redundancy
Declarations were inappropriate; instead one month's pay in lieu of notice under section 40(1)(f) and severance pay of 135 days under section 40(1)(g) were awarded
The Claimant mainly sought declarations, which the Court found not to be appropriate or effective remedies. In lieu, the Court awarded the equivalent of one month's salary and severance pay computed at 15 days' pay per year of service over 9 years using the formula of basic pay divided by 26 days.
Legal principles established
#- A court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue has been left to the court for decision
- Unfair termination has two mandatory elements: procedural fairness and substantive fairness
- The definition of employer under the Employment Act is wide enough to include agents and management staff of the legal employer
Court orders
#- 1.A declaration that the Claimant was employed by the Respondent from 2004 and her services were terminated through redundancy without compliance with the law, hence the redundancy was unfair
- 2.The Respondent to pay the Claimant one month pay in lieu of notice of Kshs 8,500/-
- 3.The Respondent to pay the Claimant 135 days pay as severance pay of Kshs 44,134/-
- 4.Total award of Kshs 52,634/-
- 5.No order as to costs - the Court declined to award costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair and wrongful termination of employment under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alice Muchemi v Nakuru Crater Pure Water Bottlers Ltd [2015] KEELRC 1480 (KLR)", Case Analysis (2015). Cause No 73 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1480/eng@2015-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.