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ELRCPartially AllowedCause No. 1024 of 2014· [2018] KEELRC 250 (KLR)

Leonard Lusinde Mukhaya v Oxford University Press East Africa Limited [2018] KEELRC 250 (KLR)

Employment and Labour Relations Court
11 December 2018
HWHellen S. Wasilwa
1,688 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a 22-year employee's redundancy was unfair because Oxford University Press skipped proper notice and consultation, awarding over Kshs 1 million.

What this practically means

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Executive summary

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The Claimant, an employee of the Respondent for 22 years earning a gross salary of Kshs. 141,993 at termination, sued challenging the termination of his employment on 31st January 2014 on account of redundancy, following the replacement of the SUN system with the automated SAP system. He sought declarations that the termination was unfair, general and exemplary damages, three months' salary in lieu of termination, bonus for the 2013/2014 financial year, severance pay for 22 years, January 2014 salary, costs and interest. The Respondent admitted the redundancy but maintained it was lawful, complying with Section 40 of the Employment Act, notifying the Labour Officer on 6th January 2014 and meeting the affected staff on 14th January 2014. It relied on its bonus policy forfeiting bonuses for employees not in employment on 31st May, and cited authority upholding abolition of office as a valid reason for redundancy. The court framed two issues: the lawfulness of the redundancy and entitlement to remedies. While notification of the Labour Officer was in order, the court found no evidence of one month's notice to the Claimant - the notice served on 15th January 2014 gave only 15 days before termination on 1st February 2014 - and no consultation before termination. The redundancy was therefore unfair and unjustified. The court awarded one month's salary in lieu of notice (Kshs. 113,594) and eight months' compensation (Kshs. 908,752), totalling Kshs. 1,022,346, with costs and interest at court rates. Several heads of relief, including exemplary damages, bonus and 22-year severance pay, were not granted.

Key legal issues

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01

Whether the redundancy of the Claimant complied with Section 40 of the Employment Act

Holding

The redundancy was unfair and unjustified because the Claimant was given only 15 days' notice instead of one month and no consultation was carried out before termination

Reasoning

The court set out the full conditions in Section 40(1) of the Employment Act. It accepted that notice to the Labour Officer was proper, but found no evidence that a notice was issued to the Claimant one month before the redundancy date. The notice served on 15/1/2014 gave only 15 days, and there was no indication of consultation before termination, so the statutory procedure was not followed.

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02

Whether the Claimant is entitled to remedies

Holding

The Claimant was awarded one month's salary in lieu of notice and eight months' salary as compensation for the unlawful redundancy, plus costs and interest

Reasoning

Having found the redundancy unfair, the court exercised its discretion under the Employment Act to compensate the Claimant with eight months' gross salary of Kshs. 113,594 per month, in addition to the one month's notice pay, and awarded costs of the suit with interest at court rates from the date of judgment.

p. 3

Legal principles established

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  • An employer who fails to give the notice period required under Section 40(1)(c) of the Employment Act and does not consult the employee renders the redundancy unfair

Court orders

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  1. 1.Payment of 1 month's salary in lieu of notice of Kshs. 113,594
  2. 2.Payment of 8 months' salary as compensation for unlawful redundancy, being 8 x 113,594 = Kshs. 908,752
  3. 3.Total award of Kshs. 1,022,346
  4. 4.Respondent to pay costs of the suit plus interest at court rates from the date of judgment

Authorities

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Legislation

  • Employment ActSection 40(1)(a) and (b)
  • Employment ActSection 40(1)(c)
  • Employment ActSection 40 (conditions (a)-(g))

Cases cited (2)

  • Paul Ngeno Vs Pyrethrum Board of Kenya Ltd
    Cause No. 26 of 2012
  • Samuel Mwinani vs Social Service League M.P.Shah Hospital
    (2018) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; claim for unfair termination on account of redundancy)

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, "Leonard Lusinde Mukhaya v Oxford University Press East Africa Limited [2018] KEELRC 250 (KLR)", Case Analysis (2018). Cause No. 1024 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/250/eng@2018-12-11

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