Felister Nduku Nzaku v Joyce Wairimu Gitau [2018] KEELRC 1322 (KLR)

Employment and Labour Relations Court

31 July 2018

OMOnesmus N. Makau

1,180 words in judgment

View original judgment Read on Kenya Law Watch case

AI-assisted case brief

·~5 min to read original · ~4 min brief

The bottom line

Kenyan employers must follow the redundancy procedure in section 40 of the Employment Act, or pay up to 12 months' salary as compensation.

What this practically means

Executive summary

The claimant, employed as a househelp by the respondent from January 1999, was terminated on 21 July 2015 on the stated ground that the children she cared for had grown up and her services were no longer required. She sued for terminal dues and compensation for unfair termination, alleging she was dismissed without prior notice, denied accrued leave, underpaid against the statutory minimum wage, and never paid her outstanding salary. The respondent never filed a defence; an earlier exparte judgment by Mbaru J was set aside on 12 July 2017 with leave to defend, but no defence was filed and the suit proceeded again by formal proof before Makau J. The claimant testified with two supporting witnesses, whose accounts of the escort to Riruta Police Station and the respondent's failure to pay were uncontroverted. The court framed two issues: whether the termination was unfair, and whether the reliefs sought should be granted. Holding that the employer bears the burden of proving substantive and procedural fairness under section 45 of the Employment Act, and that a redundancy requires strict compliance with section 40's mandatory procedure (one month's notice to the employee and Labour Officer, fair selection, and payment of notice pay, accrued leave and severance), the court found the termination unfair. Under section 49 it awarded one month's salary in lieu of notice, 12 months' compensation, July 2015 salary, accrued leave for 16 years, and salary underpayment arrears, capped at the sums pleaded. Judgment was entered for Kshs.396,444.80 plus costs and interest, subject to statutory deductions.

Key legal issues

Whether the termination of the claimant's employment was unfair

Holding

The termination was unfair, being a redundancy effected without the mandatory notice and payments under section 40 and without proof of substantive and procedural fairness under section 45.

Reasoning

The claimant's evidence that her services became superfluous and that she was terminated without prior notice was uncontroverted, as the respondent filed no defence and led no evidence. The reason cited was redundancy, which required compliance with section 40's mandatory procedure: one month's written notice to the employee and the Labour Officer, fair selection, and payment of notice pay, accrued leave and severance. None of this was done, so the employer failed to discharge the burden under sections 40 and 45.

p. 2

What reliefs should be granted

Holding

One month's salary in lieu of notice, 12 months' compensation, July 2015 salary, accrued leave for 16 years and salary underpayment arrears were awarded, but limited to the sums expressly pleaded and prayed for.

Reasoning

Under section 49 of the Employment Act, the court awarded one month's salary in lieu of notice plus 12 months' salary as compensation, taking into account 16 years of service and the claimant's absence of misconduct. Although the claimant's actual entitlements exceeded the sums pleaded (based on the 2015 minimum wage), the court could not amend pleadings at judgment and therefore awarded only the amounts prayed for.

p. 2

Legal principles established

An employer terminating on grounds of redundancy must first comply with the mandatory procedure in section 40 of the Employment Act, including one month's written notice to the employee and the Labour Officer, fair selection, and payment of salary in lieu of notice, accrued leave and severance pay.
The burden lies on the employer to prove substantive and procedural fairness under section 45 of the Employment Act.

Court orders

1.Judgment entered for the claimant in the sum of Kshs.396,444.80
2.Costs of the suit to the claimant
3.Interest at court rates until payment in full
4.The award is subject to statutory deductions

Authorities

Legislation

Employment Actsection 45
Employment Actsection 40
Employment Actsection 49
The Regulation of Wages (General) Order2015 minimum wage for a househelp in Nairobi City

Jurisdiction invoked: Employment and Labour Relations Court jurisdiction under the Employment Act (initial judgment delivered by Mbaru J, set aside and reheard on formal proof)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Felister Nduku Nzaku v Joyce Wairimu Gitau [2018] KEELRC 1322 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1322/eng@2018-07-31

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