Cheruiyot M Mutai & 4 others v Valley Confectionary Limited [2019] KEELRC 1088 (KLR)
The bottom line
#A Kenyan court upheld a bakery's redundancy, ruling workers can only claim against the company that actually employed them, and one worker won unpaid dues due to missing records.
What this practically means
#Executive summary
#Key legal issues
#Identity of the employer - Valley Bakery versus Valley Confectionary Limited
The respondent is a separate legal entity registered on 16 September 2004; claims relating to any earlier employment under Valley Bakery cannot be maintained against the respondent absent joinder of Valley Bakery.
The respondent produced a certificate of registration dated 16 September 2004 (No. C.112354), establishing it as a distinct employer under section 2 of the Employment Act. The claimants' pleadings attached appointment letters issued by the respondent dated April 2011, confirming employment from that date. Any claims regarding Valley Bakery ought to have been pursued against that entity under section 90 of the Employment Act; Valley Bakery not being a party, such matters do not arise in these proceedings.
Whether termination on account of redundancy was unfair
The redundancy was lawful and terminal dues paid to most claimants exceeded statutory entitlements, so their claims fail; Tyson Mochere Nyakundi, for whom no proof of payment exists, is awarded his statutory dues.
Applying section 40 of the Employment Act, the claimants with roughly one year of service with the respondent were entitled to notice pay, leave pay and severance of 15 days per full year (about Ksh.4,485). The respondent proved payment of terminal dues supported by discharge vouchers, which the court found generous and well above the statutory minimum. For Tyson Mochere Nyakundi the respondent filed no work records proving payment, so only his statutory dues were awarded.
Burden of proof of terminal dues payment
Where the respondent produces no work records or proof of payment of terminal dues, the claimant's entitlement stands on the statutory minimums computed by the court.
The respondent did not attach any work records with regard to payment of terminal dues to Tyson Mochere Nyakundi. Apart from the employment letter dated 30 April 2011 showing a daily wage of Ksh.345, there was no evidence of payment. The court therefore computed notice pay of Ksh.8,970, severance of Ksh.4,485 and 21 days' leave pay of Ksh.7,245, totalling Ksh.20,700.
Legal principles established
#- An employer is a legal entity defined under section 2 of the Employment Act; where claimants allege employment by a different entity, that entity must be enjoined in the proceedings.
- On redundancy, employees are entitled to notice pay, pay for leave days earned and severance pay of 15 days for each full year served under section 40 of the Employment Act.
Court orders
#- 1.Dismissal of the claims by Cheruiyot Mutai, Patrick Ombui, Robert Mose Bokea, Jared Machuki and Charles Simiyu Nalianya
- 2.Award of Ksh.20,700.00 in terminal dues to Tyson Mochere Nyakundi
- 3.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007; consolidated suits against the same employer arising from the same cause of action)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheruiyot M Mutai & 4 others v Valley Confectionary Limited [2019] KEELRC 1088 (KLR)", Case Analysis (2019). Cause No. 125 of 2015 (consolidated with Cause Nos. 120, 121, 126 and 221 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1088/eng@2019-07-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.