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ELRCPartially AllowedAppeal from Eldoret High Court Civil Case No. 94 of 2000 (Memorandum of Appeal filed 18 August 2008)· [2017] KEELRC 1970 (KLR)

Kenya Flourspar Limited v Moses Segite [2017] KEELRC 1970 (KLR)

Employment and Labour Relations Court
29 September 2017
1,541 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a finding of wrongful redundancy but slashed the employee's award, confirming only severance pay where claims lack evidence.

What this practically means

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Executive summary

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Moses Segite sued Kenya Fluorspar Company Ltd for unpaid contractual dues following termination of his employment through redundancy, obtaining judgment of Kshs 967,836/05 in the magistrates' court on 29 July 2008. The company appealed on nine grounds, contending the redundancy was lawful and the award unproved. On transfer to the Employment and Labour Relations Court at Eldoret on jurisdictional grounds, and on the parties' consent to determine the appeal on record and submissions, the court re-evaluated the evidence applying the first appellate standard in Kamau v Mungai. It upheld the finding of wrongful redundancy: the collective bargaining agreement required prior consultations with the Kenya Quarry and Mines Workers Union and the employer led no evidence to controvert the Respondent's testimony that consultations never took place and that he never consented. However, on quantum the court found most heads of claim unsustainable. The 8 months' salary, the 6-month terminal package and the leave travelling allowance of Kshs 33,600 lacked evidential foundation; the terminal benefits award of Kshs 728,277/50 was mathematically erroneous since the employer's computation was correct and the dues schedule showed the notice pay and baggage allowance had already been paid. Severance pay of Kshs 285,180/42 was sustained as a statutory redundancy entitlement. The court allowed the appeal, set aside the trial judgment, substituted an award of severance pay only, and ordered each party to bear its own costs of the appeal.

Key legal issues

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01

Whether the redundancy was wrongful

Holding

The redundancy was wrongful because there was no demonstration that the collective bargaining agreement's requirements of prior Union consultation and consent were satisfied; the Appellant led no evidence to rebut

Reasoning

The Respondent testified that the CBA required prior consultations with the Union before redundancies and that he never consented to voluntary redundancy. The Appellant led no evidence at trial. The court held the Respondent proved wrongful redundancy on a balance of probabilities, dismissing Grounds 1 and 2 of the appeal.

p. 3
02

Entitlement to terminal benefits under the CBA

Holding

The trial court's award of Kshs 728,277/50 was erroneous; the CBA provided 30 days' pay per completed year of service and the Appellant's computation was mathematically correct

Reasoning

Clause 16(d)(iv) read with 6(c)(iv) entitled employees with over 10 years' service to 30 days' pay per completed year. The Respondent served about 12 years at Kshs 5,955 per month and was already paid Kshs 76,354. His claim of Kshs 641,655 did not add mathematically, being roughly 12 months' wages (1 month per year).

p. 3
03

Severance pay

Holding

Severance pay of Kshs 285,180 was properly awardable as a statutory entitlement on redundancy

Reasoning

The court held that under the statutory framework at the material time, severance pay was an entitlement due to an employee whose position was declared redundant, so the trial court could not be faulted for awarding the amount claimed.

p. 3
04

Heads of claim lacking evidential foundation (8 months' salary; 6 months' terminal package; leave travelling allowance)

Holding

The trial court erred in awarding these heads as no evidential basis was laid

Reasoning

The 8 months' salary claim had no evidential basis and the trial record was inconclusive on the period it covered. The 6-month terminal package had no foundation. The leave travelling allowance claim of Kshs 33,600 contradicted the Respondent's own evidence of Kshs 1,600 and the CBA rate of Kshs 1,610.

p. 4

Legal principles established

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  • A first appellate court must re-evaluate the evidence and reach its own conclusions, making due allowance for not having seen or heard the witnesses
  • Where an employee testifies to non-compliance with a collective bargaining agreement before redundancy, the employer bears an evidential burden to controvert that testimony
  • Severance pay is a statutory entitlement due to an employee whose position is declared redundant

Court orders

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  1. 1.Appeal allowed
  2. 2.Trial Court judgment set aside
  3. 3.Finding that there was wrongful termination of employment through redundancy
  4. 4.Award of severance pay of Kshs 285,180/42 to the Respondent
  5. 5.Each party to bear own costs of the appeal

Authorities

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Cases cited (1)

  • Kamau v Mungai
    (2006) 1 KLR 150
On appeal from
Chief Magistrates' Court (suit transferred from High Court, Eldoret)
High Court Civil Case No. 94 of 2000
Jurisdiction invoked
First appellate jurisdiction; the High Court directed transfer of the appeal to this Court citing jurisdiction

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, "Kenya Flourspar Limited v Moses Segite [2017] KEELRC 1970 (KLR)", Case Analysis (2017). Appeal from Eldoret High Court Civil Case No. 94 of 2000 (Memorandum of Appeal filed 18 August 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1970/eng@2017-09-29

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