Kennedy Juma Ojwang v Aegis Construction Co Ltd [2017] KEELRC 1799 (KLR)
The bottom line
#A Kenyan court ruled that calling a dismissal 'redundancy' without following Section 40 legal steps makes it unfair, entitling the worker to compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the Claimant's employment on account of redundancy complied with Section 40 of the Employment Act, 2007
The termination did not comply with Section 40; the Claimant was entitled to notice pay and severance pay, and the termination was unfair under Section 45, attracting three months' salary compensation
The termination letter declared the termination a redundancy. Section 40 requires notification, payment in lieu of notice and severance pay at not less than fifteen days' pay per completed year of service. There was no evidence the Claimant was given notice of the redundancy or paid severance pay as required by law. By ignoring Section 40, the Respondent rendered the termination unfair under Section 45, warranting compensation of three months' salary.
Whether the Claimant was entitled to salary arrears for May and June 2012
The claim for salary arrears failed for lack of evidence that the Claimant worked beyond 26th May 2012
The Claimant claimed outstanding salaries for May and June 2012, but the termination letter took effect on 26th May 2012. Since there was no evidence that he worked beyond that date, there was no basis for the claimed salary arrears, and that head of claim failed.
Legal principles established
#- An employer terminating employment on account of redundancy must comply with the conditions in Section 40 of the Employment Act, including notice and payment of severance pay at not less than fifteen days' pay for each completed year of service; failure to do so renders the termination unfair under Section 45.
Court orders
#- 1.Judgment entered in favour of the Claimant: Kshs. 60,000 being three months' salary in compensation for unfair termination
- 2.Kshs. 20,000 being one month's salary in lieu of notice
- 3.Kshs. 10,000 being severance pay for one year of service (20,000/30x15)
- 4.Total award of Kshs. 90,000 with interest at court rates from the date of judgment until payment in full
- 5.Claimant awarded costs of the case
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kennedy Juma Ojwang v Aegis Construction Co Ltd [2017] KEELRC 1799 (KLR)", Case Analysis (2017). Memorandum of Claim dated 17th September 2012 (filed 19th September 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1799/eng@2017-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.