Charles Owino Odero v D Manji Construction Limited [2017] KEELRC 1992 (KLR)
The bottom line
#A Kenyan court ruled that terminating an employee on a general redundancy notice alone, without a personal notice, makes the redundancy unlawful.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the redundancy
The Claimant was terminated following only a general notice; no specific notice identifying him as an affected employee was issued, rendering the redundancy procedurally unlawful
Section 40 of the Employment Act contemplates two notices: a general notice to all employees of impending work reduction and a specific notice to the affected employee based on objective criteria. The Respondent's own witness admitted the notice dated 5th December 2013 was a general notice. Since the Claimant was terminated on that general notice without a specific notice, the process fell short of section 40 and was procedurally not lawful.
Entitlement to notice pay
Notice pay of Kshs.16,500.00 (one month at Kshs.550 per day) awarded as no notice was issued
Having found the redundancy procedure defective, the court held the Claimant was entitled to notice which was not issued, and computed one month's notice pay based on his daily wage of Kshs.550.00.
Compensation under section 45(5)
One month's pay (Kshs.16,500.00) awarded as compensation for the unlawful process, taking into account that terminal dues were largely paid
The court applied section 45(5) of the Employment Act, weighing that the Respondent paid all terminal dues except notice and a shortfall in service pay, thus largely complying with the law. A modest award of one month's pay was justified as compensation for the failure to follow section 40.
Leave pay claim
Claim declined; the Claimant admitted taking and being paid for 2 leave days monthly, and vouchers acknowledged showed leave payments
The Claimant admitted taking two leave days each month with pay and acknowledged the payment vouchers of Kshs.6,187.00 and Kshs.2,475.00 for leave. The court found the payments a generous computation of leave owed, and in the absence of a material challenge to the records, treated them as true.
Legal principles established
#- A redundancy requires both a general notice to all employees and a specific notice to the affected employee(s); termination on the basis of a general notice alone is procedurally unlawful
- Shortage of work constitutes redundancy as defined under section 2 of the Employment Act, and section 40 sets out the mandatory procedure
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for compensation at Kshs.16,500.00
- 2.Service pay of Kshs.2,750.00
- 3.Notice pay of Kshs.16,500.00
- 4.50% costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Owino Odero v D Manji Construction Limited [2017] KEELRC 1992 (KLR)", Case Analysis (2017). Cause No. 1586 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1992/eng@2017-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.