Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No. 2155 of 2015· [2018] KEELRC 1038 (KLR)

Paul Otieno Ochola v Unilever Kenya Limited [2018] KEELRC 1038 (KLR)

Employment and Labour Relations Court of Kenya
27 September 2018
1,927 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Unilever Kenya was ordered to pay an employee 12 months' salary after hiring him without disclosing it already planned to make his job redundant.

What this practically means

#

Executive summary

#
The Claimant, formerly an Accounts Assistant with Earnst and Young, was recruited by the Respondent in June 2015 on a permanent and pensionable basis at a monthly salary of Kshs. 116,385, resigned from his previous employment, and was declared redundant with effect from 31st December 2015 after roughly six months' service. He sued for damages for wrongful, unlawful and malicious termination, contending that the Respondent recruited him while already aware that the P2P Transformation Programme would render his position redundant, and concealed this fact during negotiations, violating fair labour practices and his rights. The Respondent denied the allegations, asserting that the engagement was voluntary, that it only learnt of the redundancy implications in September 2015, and that it complied with Section 40 of the Employment Act. The Court framed a single issue: whether the Respondent set out the Claimant for termination at the time of employing him. Relying on email exchanges and the Claimant's job objectives requiring knowledge transfer by October 2015, the Court found the Respondent knew of the restructuring before employment and deliberately failed to disclose it, amounting to an unfair labour practice under Article 41 of the Constitution. Although the redundancy procedure itself was followed, the Court held the callous intention could not go unpunished and awarded the Claimant damages equivalent to 12 months' salary (Kshs. 1,402,026.96), costs of the suit, and a Certificate of Service.

Key legal issues

#
01

Non-disclosure of impending redundancy at the point of recruitment

Holding

The Respondent knew of the planned restructuring before employing the Claimant, failed to disclose it, and used him to implement the very restructuring that rendered him redundant; this was an unfair labour practice

Reasoning

The Court found from the email exchanges and job objectives (the P2P Transformation target with knowledge transfer to be completed by October 2015) that the Respondent knew of the restructuring when it 'poached' the Claimant in June 2015, contrary to its assertion that it only learnt of the P2P implications in September 2015. Relying on Sita Steel Rolling Mills, the duty of disclosure arises by law regardless of innocence. The conduct was held unfair and callous despite the redundancy procedure itself being followed.

p. 3
02

Whether the redundancy procedure under Section 40 of the Employment Act vitiated the termination

Holding

Although the redundancy procedure was procedurally followed, the antecedent unfairness in the recruitment defeated the Respondent's defence and justified compensation

Reasoning

The Respondent relied on compliance with Section 40 of the Employment Act and Article 41. The Court accepted the process was followed but held the callous intention in hiring the Claimant knowing of the impending redundancy could not be ignored or go unpunished, and awarded 12 months' salary under Section 49 considerations.

p. 3

Legal principles established

#
  • Employing a person with knowledge of an impending redundancy and failing to disclose that material fact constitutes an unfair labour practice contrary to Article 41 of the Constitution
  • The duty of disclosure arises by law and not as a term of contract; innocent non-disclosure is as actionable as negligent non-disclosure or fraudulent concealment

Court orders

#
  1. 1.Damages equivalent to 12 months' salary of Kshs. 1,402,026.96 awarded to the Claimant
  2. 2.Respondent to pay costs of the suit
  3. 3.Respondent to issue the Claimant with a Certificate of Service

Authorities

#

Legislation

  • Constitution of Kenya, 2010Article 41
  • Constitution of Kenya, 2010Article 35(1)(b)
  • Employment Act, 2007Section 40
  • Employment Act, 2007Sections 49(1)(b) and 49(1)(c)

Cases cited (3)

  • Sita Steel Rolling Mills Ltd v Jubilee Insurance Company Ltd
    (2007) eKLR
  • Dr. Samson Gwer & 5 others
  • James Omwoyo Nyang'au v Heritage Insurance Company Limited
    [2014] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, 2007; Article 41 of the Constitution of Kenya, 2010)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Paul Otieno Ochola v Unilever Kenya Limited [2018] KEELRC 1038 (KLR)", Case Analysis (2018). Cause No. 2155 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1038/eng@2018-09-27

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