Joseph Musembi v Sen-Tech Limited [2018] KEELRC 675 (KLR)
The bottom line
#A Kenyan court upheld an employer's redundancy because it followed the law, so the dismissed worker got nothing extra.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy was substantively justified and genuine
The redundancy was genuine: the merger agreement expressly provided that Sen-Tech would discontinue the business operations for which the claimant was employed as machinist, rendering his position superfluous
The claimant did not contest the merger with KHS East Africa Limited nor deny that the sale agreement clause phasing out the business operations would phase out his job as a machinist. The employee assessment form recorded that the position of machinist would not be carried over to the new company. The court found no evidence of unfairness, unlawfulness or malice.
Whether the procedural requirements of Section 40 of the Employment Act were complied with
The claimant did not fault the procedure or the redundancy benefits, so the Section 40 requirements were satisfied
The court noted the claimant's complaint was only about the genuineness of the reasons, not the procedure or benefits. The respondent issued notice, copied the labour office, and paid terminal dues which the claimant acknowledged in writing on 1 July 2013. Having not faulted procedure and benefits, no unfairness was found.
Whether the claimant is entitled to compensation
Compensation does not arise as the claimant was paid all terminal dues, which he acknowledged
Following its earlier decision in Irene Mwende Mutuiri v Sen-Tech Limited, a colleague terminated on similar grounds, the court found the remedy of compensation unavailable where terminal dues were paid and acknowledged. The court adopted a similar opinion and dismissed the claim.
Legal principles established
#- Section 40 of the Employment Act sets out the procedure for redundancy in mandatory terms, including notification, one-month notice period, selection criteria and terminal benefits
- An employer may lawfully terminate employment based on operational requirements provided such termination is carried out in accordance with fair procedure
Court orders
#- 1.The claim is dismissed
- 2.Each party will bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (Sections 40, 41, 43, 45)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Joseph Musembi v Sen-Tech Limited [2018] KEELRC 675 (KLR)[2018] KEELRC 675 (KLR)9 Nov 2018followed
Cite this brief
#Cite this brief
Caselaw, "Joseph Musembi v Sen-Tech Limited [2018] KEELRC 675 (KLR)", Case Analysis (2018). Cause (not stated in judgment; related to Cause No. 1714 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/675/eng@2018-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.