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ELRCDismissedCause No 841 of 2014· [2019] KEELRC 1222 (KLR)

John Kiboro Njunguna v UK Board of Trustees and The Kenya Council of Reference of Vision Africa (Kenya) [2019] KEELRC 1222 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
28 June 2019
ANAbuodha J. N.HWHellen Wasilwa
1,325 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court upheld a redundancy because the employer followed Section 40 procedure and the employee proved no malice.

What this practically means

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Executive summary

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The claimant, employed by the respondent from 2004 (per his pleading) and last serving as Project Administrator, alleged that the respondent's Field Director, Deborah Kimathi, orchestrated his termination out of personal differences, culminating in his being declared redundant by letters dated 24th April and 9th May 2014 despite his duties still existing. He sought an injunction restraining the termination and, in the alternative, terminal dues. The respondent denied malice, asserting that after consultative meetings the local Board with the UK Board resolved to declare his position redundant because his responsibilities had largely been done away with, notably minimal construction activity over four years. The respondent's witness testified that the claimant was a volunteer from 2004 and an employee from 2009, that consultations occurred, and that payments made were in accordance with the Employment Act. The court outlined the Section 40 Employment Act redundancy procedure, including one month's notice to the employee and Labour Officer and severance pay of not less than fifteen days' pay per completed year. It found the claimant did not contest the procedure but only alleged malice, for which he produced no evidence. Applying section 43(2), the court held the employer's stated reasons were on their face reasonable and that it is not the court's role to substitute its own view of the reason for termination. The court concluded the redundancy was for valid reasons and complied with section 40, dismissed the claim with costs on 28th June 2019.

Key legal issues

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01

Validity of the reasons for the redundancy

Holding

The redundancy was for valid reasons; the claimant failed to rebut the respondent's evidence that elements of his role were no longer demanding

Reasoning

The letter of 24th April 2014 clearly stated the reasons for redundancy, including minimal construction work over four years which was a key element of the claimant's role. The claimant merely alleged his position remained advertised on the respondent's website but adduced no evidence of malice or that the role still demanded his services. Section 43(2) locates the validity of reasons in the employer's belief at the time of termination.

p. 2
02

Procedural compliance with Section 40 of the Employment Act

Holding

The court found the redundancy was done in compliance with section 40; the claimant did not seriously contest the procedure

Reasoning

The claimant, from his pleadings and evidence, did not contest the procedure followed but only alleged malice. The respondent gave one month's notice by letter dated 24th April 2014, offered severance pay for ten years, leave days due and a bonus, and paid the claimant about Kshs 200,000/-. The court held the requirements of section 40, including notice and severance pay, were met.

p. 2
03

Alleged malice by the Field Director

Holding

The allegations of malice against Mrs Deborah Kimathi were unsupported by any evidence

Reasoning

The claimant alleged that the Field Director hatched a plan to terminate him out of personal differences, relying partly on emails. The witness denied any malice and stated the emails were illegally obtained since the claimant was never privy to them. The court found the claimant never produced evidence to support the allegations of malice and instigation.

p. 2

Legal principles established

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  • Failure to observe the procedure in Section 40 of the Employment Act renders a redundancy unfair
  • The court will not question an employer's reason for termination which is on its face reasonable, nor substitute its own view
  • Under section 43(2) of the Employment Act, the reasons for termination are those the employer believed to exist at the time of termination

Court orders

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  1. 1.The claim is dismissed with costs

Authorities

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Legislation

  • Employment ActSection 40
  • Employment ActSection 43(2)
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act, Section 40 and Section 43 applied; no express constitutional provision invoked)

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, "John Kiboro Njunguna v UK Board of Trustees and The Kenya Council of Reference of Vision Africa (Kenya) [2019] KEELRC 1222 (KLR)", Case Analysis (2019). Cause No 841 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1222/eng@2019-06-28

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