Zachary Kibitok Kemboi v Eagle Motor Cycle Limited [2016] KEELRC 1697 (KLR)
The bottom line
#A Kenyan employer who skips the legal redundancy process must pay compensation, notice and costs, even for a low-earning employee.
What this practically means
#Executive summary
#Key legal issues
#Existence of an employment relationship
The claimant was an employee of the respondent as a technician earning Kshs. 7,500.
The claimant relied on a KUCFAW union membership card and identity card, supported by the testimony of CW1 and CW2. Notably the respondent's own witness DW1 attested to employment. The respondent's written submissions sought to recast the testimony as a trainee engagement, but the court preferred the witness's sworn testimony over the submission, finding the denial version unmerited.
Substantive and procedural validity of the redundancy
The purported redundancy did not comply with Section 40(1) of the Employment Act and was therefore wrongful, unlawful and unfair.
The claimant invoked Section 40(1) and the authority of Julie Tupiran Njeru v Kenya Tourist Board, which requires procedural fairness, consultation, transparent selection criteria and notification. The respondent gave no evidence of compliance with the statutory notification to the union or labour officer, or of consultation. The court agreed with the claimant's submissions and found the redundancy process not pursued in accordance with the law.
Fairness of termination generally
The termination offended Sections 41 and 45 of the Employment Act for want of valid reason and fair procedure.
Relying on Walter Ogal Anuro v Teachers Service Commission the court held that substantive justification and procedural fairness are both required. Alphonce Machanga Mwachanya v Operation 680 Limited set out the Section 41 requirements of explanation in a language the employee understands, presence of a representative, and hearing explanations. None of these were met in the summary dismissal on grounds of hard economic times.
Legal principles established
#- For a termination of employment to pass the fairness test, there must be both substantive justification and procedural fairness.
- An employer declaring redundancy must strictly comply with the conditions in Section 40(1) of the Employment Act, including notification and consultation requirements.
Court orders
#- 1.Payment of one month's pay in lieu of notice of Kshs. 7,500.00
- 2.Payment of eight months' compensation for unfair termination of employment, 8 x Kshs. 7,500 = Kshs. 60,000.00
- 3.The respondent be and is hereby ordered to issue a certificate of service to the claimant
- 4.The costs of the claim to be borne by the respondent
- Jurisdiction invoked
- Employment and Labour Relations Court established under Article 162(2) of the Constitution; Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Zachary Kibitok Kemboi v Eagle Motor Cycle Limited [2016] KEELRC 1697 (KLR)", Case Analysis (2016). Cause No. 131 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1697/eng@2016-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.