Muthoni Nyagaki Mugo v Kemetrica Limited [2019] KEELRC 473 (KLR)
The bottom line
#A Kenyan court ruled an employee's redundancy unfair because the employer skipped the mandatory notice required by Section 40 of the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent complied with the redundancy procedure under Section 40 of the Employment Act, 2007
The Respondent failed to comply; no notice of intention to declare the position redundant was issued to the Claimant under Section 40(a), and the notice to the Labour Officer was received six days after termination.
The court examined the termination letter dated 30th September 2015 and the letter to the Labour Officer, which was received at the County Labour Office on 6th October 2015, six days after the termination. There was no evidence of a prior redundancy notice to the Claimant. Relying on authorities on the sequence of notices under Section 40, the court found the procedure non-compliant, rendering the redundancy unprocedural and unfair.
Whether the termination was discriminatory
The claim of discrimination failed for want of proof.
The Claimant's only evidence was that she was the only staff member affected by the redundancy, which was confirmed by the notice to the Labour Officer. The court held that this alone did not establish discrimination, and the Respondent had also argued that no evidence was adduced to support the assertion.
What remedies flow from the finding of unfair termination
The Claimant was entitled to compensation equivalent to three months' salary.
Having found the redundancy unprocedural and therefore an unfair termination, the court awarded compensation taking into account all circumstances. Based on the September 2015 salary of Kshs.116,144.05, three months totalled Kshs.348,432.15, subject to statutory deductions, following the approach in Francis Maina Kamau v Lee Construction where a similar failure under Section 40 attracted a three-month award.
Legal principles established
#- An employer declaring redundancy must issue the employee with a notice of intention to declare the position redundant under Section 40(a) of the Employment Act before termination; failure renders the redundancy unprocedural and unfair.
- The notice to the Labour Officer is meant to elicit advice to the employer on the modalities to be employed in the redundancy process and acts as a control measure against unlawful termination clothed as redundancy.
Court orders
#- 1.Three (3) months' compensation of Kshs.348,532.15/= subject to statutory deductions
- 2.Costs of the suit
- 3.Interest from date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthoni Nyagaki Mugo v Kemetrica Limited [2019] KEELRC 473 (KLR)", Case Analysis (2019). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/473/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.