Victor Njoroge Kimani v Nakuru Express Supplies & Services Limited [2019] KEELRC 1092 (KLR)
The bottom line
#A Kenyan employer's 'suspension' letter that was never withdrawn counted as redundancy, so the employee was entitled to notice pay under the Employment Act.
What this practically means
#Executive summary
#Key legal issues
#Whether the 10th January 2016 letter suspended or terminated the claimant's employment
The letter suspended employment on grounds of redundancy; as it was never withdrawn, the respondent was bound to follow section 40 of the Employment Act and payment in lieu of notice is due
The respondent alleged at hearing that the letter was issued by mistake since the claimant was on a contract that had ended, but no follow-up letter withdrew it. The defence itself pleaded redundancy. There was no letter terminating employment and no record that the February 2011 contract was terminated on its terms. A redundancy demanded adherence to section 40, entitling the claimant to one month's notice pay.
Burden of producing work records and terms of service
The respondent's failure to comply with section 10(6) and (7) and to avail term contracts left the court relying on the claimant's filed records
The term contracts said to have been issued annually were not made available; the defence was devoid of work records. The court therefore took the claimant to have continued on the terms of the 1st February 2011 letter at Ksh.12,000.00 monthly until the January 2016 suspension.
Whether the claims for unpaid salary, house allowance, leave, overtime, holidays and rest days were made out
All these claims were dismissed for lack of justification, elaboration or supporting records
No salary accrued after suspension since no work was performed. The house allowance claim had no contractual or wage-order basis. Leave had been exhausted per the respondent's records. Overtime, holiday and rest day claims were exaggerated, pegged on a wrong 10-year period and unsupported by evidence.
Legal principles established
#- Stoppage of work due to cash flow problems or lack of work amounts to redundancy and the employer must adhere to section 40 of the Employment Act, including notice and payment in lieu of notice
- Where an employer fails to comply with section 10(6) and (7) of the Employment Act and does not avail work records, the court will rely on the records filed by the claimant
- A letter issued by an employer that is alleged to be a mistake but never withdrawn by a follow-up letter stands as the operative record
Court orders
#- 1.Award of one month's notice pay of Ksh.12,000.00 to the claimant under section 40(1) of the Employment Act
- 2.Dismissal of all other claims (unpaid salary, house allowance, leave, overtime, public holidays, rest days and compensation for unfair termination)
- 3.Each party to bear own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Victor Njoroge Kimani v Nakuru Express Supplies & Services Limited [2019] KEELRC 1092 (KLR)", Case Analysis (2019). Cause No. 216 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1092/eng@2019-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.