Joseph Gor Athiambo v Azicon Kenya Limited [2018] KEELRC 2476 (KLR)
The bottom line
#A Kenyan court ruled a watchman's redundancy unfair because the employer skipped mandatory legal steps and lost its defence by keeping no employment records.
What this practically means
#Executive summary
#Key legal issues
#Compliance with redundancy procedure under section 40 of the Employment Act
The redundancy was unprocedural and amounted to unfair termination
The Respondent produced no records evidencing the written notification of the redundancy to the employee and the labour officer at least one month in advance as required by section 40, nor any tabulation of terminal or redundancy dues. The employer bears the burden of disproving the employee's allegations where it fails to keep records under sections 10(6), (7) and 74(1).
Whether the suit was time barred
The limitation plea failed because the Respondent's own pleadings admitted termination on 15th September 2011, contradicting its submission that termination was on 5th April 2011
The Respondent admitted in its Response that the Claimant was terminated on 15th September 2011. Having pleaded that date, it could not in submissions assert a different, earlier termination date to defeat the claim on limitation grounds. A party is bound by its pleadings and cannot approbate and reprobate.
Whether the Claimant was underpaid
Yes - he was paid below the statutory minimum consolidated wage for a night watchman in Kisumu
The court compared the Claimant's salary of Kshs. 8,250 (later Kshs. 9,150) with the consolidated statutory minimum of Kshs. 8,651.45 from 1st May 2010 and Kshs. 9,732.45 from 1st May 2011, finding underpayments of Kshs. 401 per month and Kshs. 582 per month respectively, totalling Kshs. 7,140. House allowance was treated as included in the consolidated pay.
Whether payments at the Labour Office were in full and final settlement
No - the payment records did not specify any purpose or that they were in full and final settlement
The Respondent relied on two payments (Kshs. 9,015 and Kshs. 20,000) made at the Labour Office, but the records did not specify their purpose or that they settled the claim finally, and no explanation was given for two separate payments. Given the absence of proper records, the alleged full and final settlement was not established.
Legal principles established
#- Where an employer fails to keep and produce prescribed employment records, the burden falls on the employer to disprove the employee's allegations.
- A party is bound by its pleadings and cannot approbate and reprobate.
- Failure to comply with the notification requirements of section 40 of the Employment Act renders a redundancy an unfair termination.
Court orders
#- 1.Award to the Claimant of a total of Kshs. 79,297.40 comprising pay in lieu of notice Kshs. 9,751.00, pay in lieu of redundancy notification Kshs. 9,751.00, severance pay Kshs. 9,751.00, service pay for 2 years Kshs. 9,751.00, pay in lieu of annual leave Kshs. 13,651.40, compensation Kshs. 19,502.00 and underpayments Kshs. 7,140.00
- 2.The Respondent shall issue a certificate of service to the Claimant
- 3.The Respondent shall pay the Claimant's costs of the suit
- 4.The decretal sum shall attract interest at court rates from date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim stated to be within the exclusive jurisdiction of the court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Gor Athiambo v Azicon Kenya Limited [2018] KEELRC 2476 (KLR)", Case Analysis (2018). Memorandum of Claim dated 28th August 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2476/eng@2018-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.