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ELRCPartially AllowedCause No. 1563 of 2013· [2016] KEELRC 1414 (KLR)

Michael Wanyera v Gulf Energy Transport Limited [2016] KEELRC 1414 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
1 April 2016
518 words in judgment
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The bottom line

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A Kenyan court ruled an employer's failure to follow redundancy notice rules made the dismissal unlawful, awarding the employee Kshs. 80,000 plus costs.

What this practically means

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Executive summary

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The claimant, employed by the respondent on 1st May 2012 as a driver at a monthly salary of Kshs. 20,000, sued after his employment was terminated on account of redundancy on 6th February 2013 without notice or terminal benefits. He sought one month's salary in lieu of notice, payment for untaken leave days, alleged salary underpayment for nine months, unpaid house allowance, and compensation for unfair termination. The respondent entered appearance but filed no statement of defence and did not attend the hearing, so the matter proceeded by formal proof. The court found, on a balance of probabilities, that the respondent failed to follow the redundancy procedure under Section 40 of the Employment Act, 2007: the claimant received no notice, no notice pay, and no gratuity, rendering the termination unfair and unlawful. The court awarded Kshs. 20,000 in lieu of one month's notice under Section 49(1) as read with Section 49(4) and three months' salary, Kshs. 60,000, as compensation for the unprocedural termination, totalling Kshs. 80,000. However, the claimant failed to prove entitlement to house allowance over and above his monthly salary, or that he was underpaid, since his letter of appointment made no such provision; those heads were refused. The court ordered payment of the award with interest at court rates from the date of filing suit until payment in full, plus costs of the suit. Judgment was dated and delivered in Nairobi on 1st April 2016 by Mathews N. Nduma, Principal Judge.

Key legal issues

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01

Whether the redundancy termination was procedurally fair under Section 40 of the Employment Act

Holding

The termination was unfair and unlawful because the respondent failed to comply with Section 40: no notice was given, the claimant was not paid in lieu of notice, and no gratuity was paid

Reasoning

The claimant testified under oath at formal proof after the respondent failed to file a defence or attend the hearing. On a balance of probabilities he established that the laid-down redundancy procedure under Section 40 was not followed, entitling him to notice pay under Section 49(1) as read with Section 49(4) and compensation for unfair termination.

p. 2
02

Whether the claimant proved entitlement to house allowance and salary underpayment

Holding

The claimant failed to prove these heads of claim on a balance of probability; they were dismissed

Reasoning

The letter of appointment produced by the claimant did not provide for house allowance over and above the monthly salary of Kshs.20,000 or for a higher salary rate. Without documentary proof of the alleged entitlement, these claims could not succeed even in the respondent's absence.

p. 2

Legal principles established

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  • An employer declaring redundancy must follow the laid down procedures under Section 40 of the Employment Act, 2007, failing which the termination is unfair and unlawful

Court orders

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  1. 1.Respondent to pay the claimant Kshs. 20,000 in lieu of notice
  2. 2.Respondent to pay the claimant Kshs. 60,000 as compensation for unfair termination
  3. 3.Total award of Kshs. 80,000
  4. 4.Interest at court rates from date of filing suit till payment in full
  5. 5.Costs of the suit to the claimant

Authorities

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Legislation

  • Employment Act, 2007Section 40
  • Employment Act, 2007Section 49(1) as read with Section 49(4)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; claim for unfair termination and terminal benefits)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Michael Wanyera v Gulf Energy Transport Limited [2016] KEELRC 1414 (KLR)", Case Analysis (2016). Cause No. 1563 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1414/eng@2016-04-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.