Walter Onjiro Winam v Moses Munyui Ndung’u & another [2019] KEELRC 96 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the claimant was estopped from suing after payment of terminal dues assessed at the labour office
No estoppel; the respondent failed to prove a concluded settlement
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.
Whether the redundancy termination was fair and lawful
Unfair and unlawful for non-compliance with Section 40 of the Employment Act
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.
What remedies flow from the unfair redundancy
Three months' salary as compensation under Section 49; other heads refused
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.
Legal principles established
#- 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
#- 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.Interest on the decreed sum at court rate from the date of judgment
- 3.The decreed sum to be paid less statutory deductions
- 4.Costs of the suit to the claimant
- 5.Claim for overtime dismissed
- 6.Claim for salary for days worked dismissed as settled and paid
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.