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ELRCPartially AllowedNot stated in judgment· [2018] KEELRC 1662 (KLR)

Jonathan Mulonzi Nyamai v Mareba Enterprises Limited [2018] KEELRC 1662 (KLR)

Employment and Labour Relations Court
29 June 2018
BOByram Ongaya
1,148 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 a long-serving employee's redundancy was unfair because his employer skipped the one-month notice and labour officer notification the law requires.

What this practically means

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Executive summary

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The claimant, employed by the respondent as an office messenger from 01.09.1979, sued for declarations that his summary dismissal was unfair and for terminal dues and compensatory damages totalling Kshs.938,942. He testified that on 30.06.2014 the human resource manager told him his services were no longer required on the instruction of the General Manager, with no notice or hearing. The respondent asserted the company closed on 30.06.2014 due to hard economic conditions and that his benefits were computed at Kshs.39,906.20. The court framed two issues: whether the termination was unfair, and entitlement to the other remedies. On the first, the court found the termination was on account of redundancy but that the claimant received neither one month's notice nor notice to the area labour officer as required by section 40 of the Employment Act, 2007, and held the termination unfair, awarding 12 months' salary (Kshs.144,000) under section 49. On the second, the claims for unpaid salaries from 2001 to 2003 and 2007 to 2009 were held time barred as a continuing injury under section 90; one month's salary in lieu of notice (Kshs.12,000) was awarded; pay in lieu of annual leave for 2000 to 2014 was awarded as prayed (Kshs.144,000); and the service/gratuity claim was deemed abandoned since the claimant confirmed he had been paid his NSSF dues. Judgment was entered for the claimant for Kshs.156,000 payable by 01.08.2018, with interest at court rates on default, plus costs of the suit. The claim succeeded in part.

Key legal issues

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01

Whether the termination was unfair

Holding

The termination on account of redundancy was unfair because the claimant was not given one month's notice and the labour officer was not notified as required by section 40 of the Employment Act, 2007.

Reasoning

The claimant worked for the respondent from 1979 and was terminated when the company closed. The court found the termination was on account of redundancy. Section 40 requires a month's notice and notice to the area labour officer; neither was given. Considering the long service, the claimant's non-contribution to the predicament and the abruptness, 12 months' salary was awarded under section 49.

p. 2
02

Whether unpaid salary claims were time barred

Holding

The claims for unpaid salaries for 2001-2003 and 2007-2009 were a continuing injury and, being filed on 05.11.2014, were time barred under section 90.

Reasoning

Section 90 requires employment claims to be filed within 12 months of cessation of a continuing injury. The last of the unpaid salary claims was for 2009; more than 12 months had elapsed by the date of filing suit. The court also noted the respondent acknowledged salary arrears per a letter dated 31.12.2005 with no evidence of payment, though the same may be time barred.

p. 2
03

Pay in lieu of annual leave

Holding

The claimant established entitlement to pay for untaken annual leave for 2000 to 2014 and was awarded the prayed-for sum of Kshs.144,000.

Reasoning

Under section 28 the claimant was entitled to leave earned up to the last day at work, and section 40 entitled him to leave pay for all outstanding annual leave. There was no contractual term forfeiting untaken leave, and no evidence he was accorded the leave.

p. 2

Legal principles established

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  • Termination on account of redundancy requires one month's notice and notice to the area labour officer under section 40 of the Employment Act, failing which the termination is unfair
  • Claims for unpaid salaries constitute a continuing injury which must be filed within 12 months of cessation under section 90 of the Employment Act
  • Compensation for unfair termination is assessed under section 49 of the Employment Act considering the period worked, conduct and abruptness of the termination

Court orders

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  1. 1.The respondent to pay the claimant Kshs.156,000.00 by 01.08.2018 failing which interest at Court rates from the date of judgment till full payment
  2. 2.The respondent to pay the claimant's costs of the suit
Jurisdiction invoked
Employment and labour relations jurisdiction under the Employment Act, 2007 (first-instance memorandum of claim)

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, "Jonathan Mulonzi Nyamai v Mareba Enterprises Limited [2018] KEELRC 1662 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1662/eng@2018-06-29

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