Luke Cheruiyot & 37 others v National Oil Corporation of Kenya [2018] KEELRC 194 (KLR)
The bottom line
#Kenya's Employment Court ruled National Oil's 2000 retrenchment unfair because it skipped required union and labour officer notices, awarding 17 former workers 12 months' salary each.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Section 16A of the repealed Employment Act Cap 226
The redundancy was unfair because the statutory conditions - notice to the union and labour officer, one month's notice, and seniority-based selection - were not met
The court set out the full conditions in Section 16A(1), found the termination letters issued without due notice (one dated 1.11.2000 terminating the same day), noted a memo to staff that did not identify affected staff, and an Office of the President letter questioning the exercise's compliance with the circular. CW1, among the oldest employees (No. 0027), was retrenched contrary to the seniority rule. The redundancy was therefore substantively and procedurally unfair.
Estoppel by acceptance of terminal dues
Acceptance of dues paid does not estop employees from claiming what is legally due
The court adopted the Claimants' submission, supported by Jane Njeri Wanyoike & 23 Others v Pan Africa Insurance Co Ltd, that accepting terminal dues offered on termination does not bar a claim for the balance of lawful entitlements. It found for the Claimants notwithstanding their acceptance of cheques.
Authority to prosecute claims for absent claimants
Written authority to the 1st Claimant suffices; physical absence at hearing does not negate prosecution, but claims of those with no authority are struck out
The court accepted that CW1 had written authority from 17 named Claimants and held their absence from court did not negate that authority. However, for Claimants who gave no authority, the claim was not prosecuted and was struck out.
Remedy for unfair redundancy
Compensation of 12 months' salary awarded to each Claimant who prosecuted the claim
The court awarded 12 months' salary for each Claimant based on their monthly salaries, in addition to costs and interest.
Legal principles established
#- A redundancy carried out without notice to the union and labour officer as required under Section 16A of the (repealed) Employment Act is unfair
- Selection for redundancy must have due regard to seniority in time; failing LIFO offends the statute
Court orders
#- 1.The claims of Claimants Nos. 5, 8, 11, 12, 13, 17, 19, 20, 21, 22, 24, 25, 26, 27, 29, 32, 33, 34, 35 and 37 are struck out for want of prosecution
- 2.Compensation for unfair redundancy awarded at 12 months' salary to each of the 17 prosecuting Claimants, itemised per Claimant
- 3.Respondent to pay the Claimants' costs of the suit
- 4.Interest on the awards at court rates from the date of judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution establishing the Employment and Labour Relations Court (inferred from the court seized; the judgment does not state a jurisdictional provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Luke Cheruiyot & 37 others v National Oil Corporation of Kenya [2018] KEELRC 194 (KLR)", Case Analysis (2018). Cause No. 493 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/194/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.