Cyrus Waithaka Mwangi v Equity Bank Limited [2019] KEELRC 23 (KLR)

The court found it not in dispute that by letter dated 17 August 2012 the claimant was employed by the respondent and by letter dated 30 December 2014 transferred between entities. The defence asserted the transfer letter was erroneously issued and later corrected, but produced no material evidence of such correction. The employment subsisted with the respondent in various capacities until termination while the claimant was on leave in Kenya.

The respondent argued the cause of action arose in Juba, South Sudan. The court noted that in a ruling delivered on 11 October 2018 the issue of jurisdiction had been addressed, and the respondent merely maintained the same line of argument in written submissions, which the judgment did not further disturb.

The court accepted that termination on grounds of cost-rationalisation and nationalisation amounted to redundancy under section 2 read with section 40(1) of the Employment Act, 2007, being based on operational requirements and not the employee's fault. However, section 40 contemplates a general notice and an individual notice; the notice dated 9 August 2016 only reached the claimant on 25 August 2016 while he was on leave, and the letter wrongly suggested his last day of work was 31 July 2016. Procedural fairness under section 45(3) was not met.

Because there existed a valid reason for termination on account of redundancy, reinstatement was not appropriate notwithstanding the procedural lapse. Compensation for the procedural lapse was fixed at three months' gross pay and notice pay at one month's gross salary, the claimant having been paid for one notice already. Salary was due for the 25 days of August 2016 during which he remained an employee. As the final salary figure was unclear, tabulation was left to the shop floor.