Chrispus Wambua Mutali v Seyani Brothers And Company (K) Limited [2019] KEELRC 1658 (KLR)
The bottom line
#A Kenyan court ruled that telling an employee to go home and wait to be recalled counts as unfair redundancy, awarding him Kshs. 351,000.
What this practically means
#Executive summary
#Key legal issues
#Existence of a contract of service
The parties were in a contract of service from October 2004 to October 2013 at Kshs.18,000.00 monthly
The claimant's evidence, supported by a voucher dated 16.10.2004, showed continuous work as a foreman supervising others without a break until October 2013. The respondent admitted employment (though from October 2008) but gave no evidence despite an opportunity to call a witness. The Court therefore accepted the claimant's uncontroverted account of the employment relationship and its terms.
Unfair termination by way of unfair redundancy
Sending the claimant away to be recalled and failing to recall him amounted to unfair redundancy and unfair termination contrary to section 40 of the Employment Act, 2007
The claimant was told to go away for a month and resume duty, but was never recalled. The Court considered his clean record, nine years of unbroken service and the abrupt termination, and balanced the justice of the parties' positions in concluding the termination breached section 40.
Remedies
Award of 12 months' compensation (Kshs.108,000.00), one month's notice pay (Kshs.18,000.00), severance at 15 days per year for 9 years (Kshs.81,000.00) and 8 years' unpaid leave (Kshs.144,000.00), totalling Kshs.351,000.00
Under section 40 as read with section 49 of the Employment Act, the Court awarded maximum compensation of 12 months' salaries given the clean record and long service, one month's salary in lieu of notice, severance pay computed at 15 days for each of the 9 years served, and unpaid leave for 8 years, producing a total award of Kshs.351,000.00.
Legal principles established
#- A direction to an employee to go away to be recalled, followed by failure to recall, amounts to unfair redundancy constituting unfair termination
Court orders
#- 1.Payment of Kshs. 351,000.00 by 01.08.2019, failing which interest at court rates from the date of judgment till full payment
- 2.The respondent to pay the claimant's costs of the suit
- 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, "Chrispus Wambua Mutali v Seyani Brothers And Company (K) Limited [2019] KEELRC 1658 (KLR)", Case Analysis (2019). Cause No 1005 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1658/eng@2019-05-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.