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ELRCPartially AllowedCause No. 403 of 2016· [2018] KEELRC 187 (KLR)

Mary Nyawira Karimi v Pure Circle (K) Limited (Cause 403 of 2016) [2018] KEELRC 187 (KLR)

Employment and Labour Relations Court of Kenya
18 December 2018
MMM. Mbaru
1,946 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 confirmed employers must issue redundancy notice before terminating an employee, even when offering pay in lieu.

What this practically means

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Executive summary

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The claimant, employed as a Senior Accounts Assistant on a two-year contract from December 2014, was declared redundant by the respondent on 18th July 2016 with immediate effect. She sued claiming unlawful redundancy and unfair termination, seeking salary for 18 days, notice pay, redundancy notice pay, leave days, weekend and public holiday pay, compensation, costs, and a declaration that the redundancy was wrongful and unfair. The respondent maintained it followed due process, issued notice copied to the labour officer, and had settled terminal dues of Ksh.180,375.00 including leave, 18 days worked, notice pay and severance pay. The parties agreed that three items remained contested: weekend work, public holiday work and compensation for unfair termination. The court held that redundancy requires both substantive justification and procedural fairness, and that the notices under section 40(1) of the Employment Act are mandatory conditions precedent. The summary action against the claimant lacked procedural fairness: there was no prior notice of the intended redundancy, no evidence of efforts at redeployment, and no explanation why the claimant alone was targeted. Even an intention to pay in lieu of notice does not dispense with the notice requirement. The claim for redundancy notice pay under sections 40(1)(b) and (f) was found justified and awarded at Ksh.65,000.00. No additional compensation was granted because the terminal dues already paid, including unpleaded severance pay, were found adequate under section 45(5). The weekend and public holiday claims failed for want of evidence and submissions. Each party was ordered to bear its own costs.

Key legal issues

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01

Procedural fairness in redundancy under section 40 of the Employment Act

Holding

The summary termination lacked procedural fairness; prior notice of the intended redundancy and notice to the labour officer under section 40(1)(b) were mandatory and were not properly issued

Reasoning

The court found that although there was an underlying reason of redundancy, the respondent acted summarily without prior notice to the claimant or compliance with section 40(1)(b). Even where the employer intends to pay in lieu of notice, the notice of intended redundancy must still issue, noting the extent and reasons. Redeployment options were not considered and the targeting of a single employee was unexplained.

p. 3
02

Notice pay under section 40(1)(b) and (f)

Holding

The claimant was awarded Ksh.65,000.00 being notice pay due and unpaid under section 40(1)(b) and (f) of the Employment Act, 2007

Reasoning

The court distinguished the notice due under section 40(1)(b) (personal written notice to the employee and the labour officer) from the payment in lieu under section 40(1)(f). The respondent had paid 30 days' notice pay but the redundancy notice obligations under (b) and (f) remained unaddressed, so the award of one month's salary was justified.

p. 4
03

Compensation for unfair termination

Holding

No additional compensation awarded; the terminal dues already paid, including unpleaded severance pay, were found adequate under section 45(5)

Reasoning

In exercising the discretion under section 45(5), the court took into account that the respondent had settled terminal dues including leave, 18 days worked, notice pay and severance pay of Ksh.180,375.00. This mitigated the unfairness and rendered further compensation unnecessary.

p. 3
04

Weekend and public holiday pay claims

Holding

Dismissed for lack of elaboration in evidence and submissions

Reasoning

The claims were pleaded but the claimant did not give details in her evidence, and the claims were not addressed in written submissions. The court held the respondent was denied the opportunity to respond, so no payment was due.

p. 3

Legal principles established

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  • The notices required under section 40(1) of the Employment Act are mandatory conditions precedent to a valid redundancy, including notice to the employee personally and to the labour officer
  • A redundancy must be justified and cannot be used to target a single employee on a whim

Court orders

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  1. 1.Award of notice pay due and unpaid under section 40(1)(b) and (f) of the Employment Act, 2007 at Ksh.65,000.00
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 40
  • Employment Act, 2007section 41
  • Employment Act, 2007section 43(1)
  • Employment Act, 2007section 43(2)
  • Employment Act, 2007section 40(1)(b)
  • Employment Act, 2007section 40(1)(f)
  • Employment Act, 2007section 45(5)

Cases cited (6)

  • BIFU versus Murata Sacco Society Limited
    Cause No.616 of 2010
  • Thomas De la Rue (K) Ltd versus David Opondo Omutelema
    [2013] eKLR
  • Kenya Airways Limited versus Aviation & Allied Workers Union Kenya & 3 others
    [2014] eKLR
  • Agnes Ongadi versus Kenya Electricity Transmission Company Limited
    [2016] eKLR
  • Aviation and Allied Workers Union & 7 Others versus Kenya Airways Limited
    Cause No.1616 of 2014
  • Jane I Khalachi versus Oxford University Press E. A Ltd
    Cause no.924 of 2010
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Cause filed under the court's employment jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (21)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mary Nyawira Karimi v Pure Circle (K) Limited (Cause 403 of 2016) [2018] KEELRC 187 (KLR)", Case Analysis (2018). Cause No. 403 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/187/eng@2018-12-18

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