Jeconiah Opiyo Makoude v Build Africa Kenya [2019] KEELRC 569 (KLR)
The bottom line
#An employer can make a job redundant, but skipping proper notice and consultation in Kenya makes the redundancy unfair and costly.
What this practically means
#Executive summary
#Key legal issues
#Whether there was a genuine redundancy situation
The court found a redundancy situation existed; the Claimant failed to produce evidence showing otherwise
The Claimant argued the Respondent was doing well, had received further funding, and that the redundancy masked a termination driven by personal differences with his boss. The court held it is the employer's prerogative to restructure, and the employee alleging absence of a real redundancy bears the burden of proof. Finding no contrary evidence, the court held there was a redundancy situation.
Whether the Respondent complied with Section 40(1) of the Employment Act on notice
The fact of issuance of the redundancy notice to the labour officer was not established; due process was not followed
The Respondent relied on Appendix BAK 1 and BAK 15, but the court noted BAK 1 was a letter to the labour office with no receipt stamp or reply, and BAK 15 was a discharge and release agreement. There was no indication of notice to the Claimant himself. Consequently the mandatory notice conditions of Section 40 were not proved.
Whether there was consultation before the redundancy
No consultation was demonstrated; consultation is an imperative requirement, so the redundancy was unfair
Relying on the Kenya Airways case (Maraga & Mugo JJA) on the imperative nature of consultation, the court found the Respondent did not demonstrate any consultation with the Claimant before the redundancy. In the absence of notice and consultation, due process was not followed and the redundancy was unfair.
Legal principles established
#- It is the employer's prerogative to restructure its organisation, provided redundancy is carried out in a legal manner under Section 40 of the Employment Act
- Where an employee alleges there was no real redundancy situation, the burden of proving this lies on the employee
- Failure to give notice to the employee and the labour officer, and failure to consult, renders a redundancy procedurally unfair
Court orders
#- 1.The Respondent to pay the Claimant 8 months' salary as compensation for unfair redundancy (8 x Kshs. 444,704/- = Kshs. 3,557,632/-)
- 2.The Respondent to pay costs of the suit plus interest at court rates with effect from the date of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (redundancy and unfair termination provisions, Sections 40, 41, 43, 45 and 5)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeconiah Opiyo Makoude v Build Africa Kenya [2019] KEELRC 569 (KLR)", Case Analysis (2019). Cause No 1996 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/569/eng@2019-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.