Milton Muyodi Maloba v Crown Paints Kenya Limited [2018] KEELRC 1373 (KLR)
The bottom line
#A Kenyan court ruled that skipping mandatory redundancy notice makes a dismissal unfair, but employees cannot claim salaries for their contract's unexpired years.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of redundancy under section 40 of the Employment Act, 2007
The termination was procedurally unfair because the Claimant was not given the requisite one month advance written notice of redundancy
Section 40 requires one month advance written notice to a non-unionised employee and notice to the local Labour Officer. The Labour Officer was notified by letter dated 1 February 2014, but the Claimant only received a termination letter on 27 March 2014 effective 31 March 2014. The Respondent's witness conceded in cross-examination that written notice was not given, contrary to the mandatory notice requirement in Thomas De La Rue.
Lost income to the end of a fixed-term contract
Such relief is not tenable absent express contractual agreement or direct statutory provision
The Claimant relied on Ruth Gathoni Ngotho v PCEA Foundation and Francis Lawrence Oyatsi v Nzoia Sugar Co. Ltd, while the Respondent cited contrary authority. The court endorsed the persuasive Supreme Court of Uganda decision in Bank of Uganda v Tinkamanyire that compensation for the unexpired remainder of a terminated contract is unattainable in law, and declined the Kshs 7,400,000/- claim.
Appropriate remedies for unfair redundancy
Compensation equivalent of 3 months gross wages for about 2 years of service, pay in lieu of notice based on basic pay, and accrued leave as computed by the employer
Gross pay is relevant for compensation under section 49(1)(c), while basic pay applies to pay in lieu of notice. Considering length of service of about 2 years, 3 months gross wages (Kshs 555,000/-) was awarded. Pay in lieu was admitted as outstanding, and accrued leave of Kshs 83,333/- was accepted on the employer's computation as custodian of records.
Legal principles established
#- Notice of redundancy to a non-unionised employee is mandatory under section 40 of the Employment Act, 2007, and failure to give it renders the redundancy procedurally unfair
Court orders
#- 1.Compensation of Kshs 555,000/- (equivalent of 3 months gross wages)
- 2.Pay in lieu of notice of Kshs 125,000/-
- 3.Accrued leave of Kshs 83,333/-
- 4.Total award of Kshs 763,333/- to the Claimant
- 5.Claimant to have costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance employment cause)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Milton Muyodi Maloba v Crown Paints Kenya Limited [2018] KEELRC 1373 (KLR)", Case Analysis (2018). Not stated in the judgment (Cause instituted on 23 April 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1373/eng@2018-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.