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ELRCPartially AllowedNot stated in the judgment· [2019] KEELRC 96 (KLR)

Walter Onjiro Winam v Moses Munyui Ndung’u & another [2019] KEELRC 96 (KLR)

Employment and Labour Relations Court
20 December 2019
2,588 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 that an employer who skips proper redundancy notice and paperwork must pay compensation, even after a labour office complaint.

What this practically means

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Executive summary

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The claimant, employed as an Assistant Accountant from 6.1.2012, was terminated on 6.7.2016 on account of redundancy. He sued for unfair termination, claiming 12 months' compensation, leave, overtime and days worked, contending that no redundancy notice was issued and that he learned the reason for termination only from the defence. The respondent admitted the redundancy but argued the dispute was fully settled at the labour office, where it paid Kshs. 36,000 (notice and days worked) and Kshs. 110,000 (assessed dues) following a labour officer's letter of 29.7.2016, and pleaded estoppel. The court framed three issues: estoppel, fairness of the termination, and reliefs. On estoppel, it held that under Section 47(3) of the Employment Act a labour office complaint does not bar a court suit; that Article 159(2)(c) obliges courts to respect settlement agreements, but no signed written agreement existed, no proof of a 27.7.2016 meeting was adduced, and the respondent did nothing to verify the disputed signature on the petty cash voucher; estoppel therefore failed. On fairness, the respondent's admissions that neither the claimant nor the labour officer received one month's written redundancy notice, and that accrued leave and severance were paid only after the labour office complaint, meant the termination contravened Section 40(1)(b), (e) and (g) read with Section 45 and was unfair. The court awarded three months' salary (Kshs. 90,000) as compensation under Section 49, considering the four years of clean service and payments already made. Overtime was dismissed as exaggerated and lacking particulars; days worked were admitted as paid; leave was limited to the labour officer's assessment already settled. Judgment was entered for the claimant for Kshs. 90,000 plus costs and interest, less statutory deductions.

Key legal issues

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01

Whether the claimant was estopped from suing after payment of terminal dues assessed at the labour office

Holding

No estoppel; the respondent failed to prove a concluded settlement

Reasoning

Section 47(3) of the Employment Act preserves the employee's right to complain to the industrial court despite a labour office complaint. ADR settlements are encouraged under Article 159(2)(c), but here no written settlement agreement was signed, there was no proof of any meeting on 27.7.2016, and no proof the claimant signed the petty cash voucher for Kshs. 110,000. When the signature was disputed in the reply to defence, the respondent took no step to verify it. The settlement claim therefore failed on a balance of probability.

p. 3
02

Whether the redundancy termination was fair and lawful

Holding

Unfair and unlawful for non-compliance with Section 40 of the Employment Act

Reasoning

The respondent admitted in evidence that it never served the claimant or the labour officer with one month's written notice of the redundancy, never issued a Section 77 notice, and paid accrued leave and severance only after the labour office complaint. Section 40(1)(b) requires written notice of at least one month to the employee and labour officer; (e) requires cash payment of accrued leave; (g) requires severance pay of not less than 15 days' pay per completed year. These breaches rendered the termination unfair under Sections 40 and 45.

p. 3
03

What remedies flow from the unfair redundancy

Holding

Three months' salary as compensation under Section 49; other heads refused

Reasoning

In fixing compensation the court considered the claimant's four years of service without disciplinary issues, that he did not contribute to the termination through misconduct, and that the employer had already paid severance pay and one month's salary in lieu of notice. The overtime claim was rejected as exaggerated and lacking particulars; the days-worked claim was admitted as paid; leave was limited to the labour officer's assessment already paid.

p. 3

Legal principles established

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  • A complaint to a labour office under Section 47 of the Employment Act does not bar an employee from approaching the Employment and Labour Relations Court on the same issue or any infringement of statutory rights
  • Where there is no signed written settlement agreement and the party alleging settlement fails to prove it, estoppel cannot be sustained and the employee may still sue
  • Termination on account of redundancy without one month written notice to the employee and labour officer, payment of accrued leave and severance pay breaches Section 40 of the Employment Act and is unfair within Sections 40 and 45

Court orders

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  1. 1.Judgment entered for the claimant against the respondent for Kshs. 90,000 being 3 months' salary compensation under Section 49 of the Employment Act
  2. 2.Interest on the decreed sum at court rate from the date of judgment
  3. 3.The decreed sum to be paid less statutory deductions
  4. 4.Costs of the suit to the claimant
  5. 5.Claim for overtime dismissed
  6. 6.Claim for salary for days worked dismissed as settled and paid
  7. 7.Claim for leave days dismissed save for what was assessed by the labour officer and paid on 29.7.2016
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 40, 45, 47, 49 and 77 invoked); Article 159(2)(c) of the Constitution on ADR considered

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, "Walter Onjiro Winam v Moses Munyui Ndung’u & another [2019] KEELRC 96 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/96/eng@2019-12-20

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