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ELRCPartially AllowedNot stated in judgment· [2019] KEELRC 874 (KLR)

Felister Nandito Emiri (for Estate of Cecilia Emiri – Deceased) & 23 others v Ol Jogi Limited [2019] KEELRC 874 (KLR)

Employment and Labour Relations Court
23 September 2019
NMNzioki wa Makau
4,360 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled a flawed redundancy illegal but awarded workers only unpaid notice because their court pleadings never challenged the redundancy itself.

What this practically means

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Executive summary

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Seventeen remaining Claimants (out of an original 24, eight having been expunged) sued their former employer for unfair and unlawful termination on or about 7th June 2003, claiming terminal dues, three months' pay in lieu of notice, alleged illegal deductions for absenteeism, damages for cookers allegedly confiscated and valued at Kshs. 40,000/- each, severance pay, unpaid salary for four days worked monthly, general damages for breach of contract, costs and interest. The Respondent maintained that the Claimants were lawfully declared redundant due to reduced funding, that Section 40 of the Employment Act was complied with, that all terminal dues were paid and acknowledged in writing, and that the claim was an abuse of process. The Claimants' witness denied redundancy, alleging victimisation for joining KUDHEIHA, but conceded no proof of union membership. The Respondent's finance manager and a Labour Officer testified to the redundancy procedure; the Labour Officer conceded the letter to the Ministry of Labour dated 9th June 2003 was a report after the fact. The court found Section 40(1) was not complied with: notice was under one month, the labour officer was informed after termination, and leave dues were not paid in cash. However, since the pleadings did not expressly challenge the redundancy, and applying the principle that parties are bound by their pleadings, no relief flowed from that breach. The special damages for cookers failed for want of proof, the items being heating coils; the severance pay claim failed as payslips showed service pay was made. In the final analysis the Claimants recovered only unpaid 30-day contractual notice pay, with costs of the suit to scale.

Key legal issues

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01

Compliance with Section 40(1) of the Employment Act in declaring redundancy

Holding

The Respondent did not comply: notice was less than one month, the labour officer was informed after termination, and leave dues were not paid in cash

Reasoning

The court reproduced Section 40(1) and found the notice given on 7th June 2003 took effect immediately, that the letter to the Ministry of Labour dated 9th June 2003 was a report of what had happened and not a notice of intent, and that leave dues were not paid in cash. The Labour Officer himself conceded the letter was informational, not notice.

p. 5
02

Whether the court could grant relief for unfair redundancy not expressly pleaded

Holding

No; parties are bound by their pleadings and the court cannot award what was not pleaded despite strong evidence

Reasoning

Relying on the IEBC v Mutinda Mule decision quoting the Nigerian Supreme Court, the court held that evidence at variance with pleadings goes to no issue. The Claimants' pleadings did not expressly challenge the redundancy, so no relief on that head could be granted even though Section 40 was breached.

p. 5
03

Entitlement to notice pay

Holding

Each Claimant entitled to recover the 30 days contractual notice unpaid, as the termination took effect immediately

Reasoning

The contractual notice was 30 days; the Respondent agreed the notice took effect immediately and employees were allowed to stay on premises until 30th June 2003. The statutory shortfall meant the Claimants could recover the unpaid 30 days notice.

p. 5
04

Proof of special damages for the cookers

Holding

Claim failed; no proof of confiscation and the items were heating coils, not cookers worth Kshs. 40,000/-

Reasoning

No evidence of who, when and how the cookers were confiscated; the court took judicial notice that the items displayed were fabricated heating coils incapable of qualifying as cookers, and receipts produced were not credible.

p. 5

Legal principles established

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  • Parties are bound by their pleadings; evidence at variance with the pleadings goes to no issue and must be disregarded
  • A redundancy declaration must comply fully with the conditions in Section 40(1) of the Employment Act, including not less than one month's prior notice to the employee and the labour officer

Court orders

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  1. 1.The 17 Claimants to recover their unpaid notice pay (30 days notice unpaid)
  2. 2.Costs of the suit to the Claimants to scale
  3. 3.It is so ordered

Authorities

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Legislation

  • Employment ActSection 40(1) (including sub-paragraphs (a)-(g))
  • Evidence ActSection 107

Cases cited (3)

  • Kenya Airways Limited v Aviation and Allied Workers Union & 2 Others
    [2014] eKLR
  • Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others
    [2014] eKLR
  • Adetoun Oladeji (Nig) Ltd vs. Nigeria Breweries Plc
    S.C. 91/2002
Jurisdiction invoked
Not expressly stated; original employment and labour relations jurisdiction (suit commenced in the High Court at Meru and proceeded before the ELRC)

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, "Felister Nandito Emiri (for Estate of Cecilia Emiri – Deceased) & 23 others v Ol Jogi Limited [2019] KEELRC 874 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/874/eng@2019-09-23

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