Peter Wanjohi Muthee v Bayer East Africa Limited & another [2016] KEELRC 1 (KLR)
The bottom line
#Kenya's Employment Court ruled Bayer's redundancy was lawful in principle but unlawful in procedure, awarding the employee pay because written notice wasn't given.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy complied with Section 40 of the Employment Act
The redundancy was procedurally flawed: the Claimant was notified orally on the day of termination with immediate effect, not personally in writing as the law requires, and no payment of notice and severance had been made
Section 40(1)(b) requires personal written notification to a non-unionised employee plus notification of the labour officer, and paragraphs (f) and (g) require payment of one month's notice and fifteen days' pay per year of service. The employer notified the labour officer in December 2010 but first informed the Claimant orally on 13 January 2011 with immediate effect, without prior written notice or payment. The court held these provisions were abridged and the termination unlawful, though the redundancy itself was a legitimate business decision.
Whether the Claimant was defamed by the email to distributors
The defamation claim failed for want of proof of publication and defamatory content
The Claimant alleged an email to the Respondent's clients injured his reputation and destroyed his career, but he did not produce the email itself nor call any recipient to testify that their perception of him was affected. Even the redacted version produced did not show defamatory content. The court therefore dismissed the claim under this head.
Whether the Claimant was entitled to 14 years' loss of earnings and 2010 bonus
Anticipatory earnings up to retirement are not payable; compensation is confined to Section 49 of the Employment Act
The Claimant sought 14 years' future earnings (Kshs. 129,760,680), a claim with no legal basis since he would not have rendered services for those years. Following Rika J.'s reasoning in D.K. Njagi Marete v TSC, the court declined future salaries and instead awarded three months' compensation under Section 49, taking into account the employer's knowledge of the law and the abruptness of the dismissal. No bonus award was made.
Legal principles established
#- An employer declaring redundancy against a non-unionised employee must notify the employee personally in writing and the labour officer, and pay one month's notice and severance pay of not less than fifteen days' pay per completed year of service under Section 40 of the Employment Act.
- Anticipatory/future earnings up to retirement age are not a permissible head of damages in unfair termination claims; compensation is limited to Section 49 of the Employment Act.
- A claimant alleging defamation bears the burden of proving publication of a defamatory statement to third parties, and may not rely on an email neither produced nor proved by recipients.
Court orders
#- 1.Judgment for the Claimant against the 1st Respondent
- 2.One month's salary in lieu of notice Kshs. 563,765
- 3.13 days worked in January 2011 Kshs. 244,298.16
- 4.Compensation for unlawful dismissal of 3 months Kshs. 1,691,295
- 5.Costs of the suit to the Claimant
- 6.Interest on the above awards at court rates from date of judgment till payment in full
- 7.Awards to be subject to statutory deductions in terms of Section 49 of the Employment Act
- 8.Certificate of service in terms of Section 50 of the Employment Act
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over unfair termination and associated employment claims under the Employment Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Wanjohi Muthee v Bayer East Africa Limited & another [2016] KEELRC 1 (KLR)", Case Analysis (2016). Cause No 520 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1/eng@2016-08-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.