David Ithau Wambua v Liberty Kenya Holdings Limited (Cause 1237 of 2015) (Employment and Labour) [2019] KEELRC 1749 (KLR)
The bottom line
#Kenya's Employment Court ruled Liberty Life's 18-day redundancy notice and lack of consultation were unfair, awarding an ex-employee 8 months' salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy was procedurally fair under section 40 of the Employment Act
The redundancy was procedurally unfair: the Claimant received only about 18 days' notice instead of the statutory one month and there was no consultation.
The redundancy letter of 13th May 2015 took effect on 31st May 2015, giving roughly 18 days rather than the one month required by section 40(1) of the Employment Act. Relying on the Court of Appeal's decision in Kenya Airways v Aviation & Allied Workers Union, the court held that notice under section 40 is not merely informational but enables consultation to avert or minimise terminations. There was no indication of any consultation before the redundancy, rendering it unfair and unjustified.
Whether the abolition of the Claimant's position was a genuine redundancy
The court found the position named in the redundancy letter had effectively been superseded by a realignment, and the Claimant's actual position was not validly abolished.
A 7th March 2014 email showed a revised structure approved by the Board under which the Claimant occupied the position of General Manager (Marketing & Communications), which was not shown vacant nor abolished, while other staff retained General Manager positions. The redundancy letter referred to the older 'Regional Head Marketing and Communication' role, and there was no evidence of any subsequent change to the Claimant's position, supporting the Claimant's contention that the position stated to be redundant was not the position he actually held.
Whether the Claimant was discriminated against on pay compared to his predecessor and junior
No discrimination established: the Claimant negotiated his own salary, his predecessor's scope was wider, and no proof showed his junior earned more.
Although the Claimant's predecessor earned KShs. 650,000/= against his KShs. 400,000/=, her responsibilities were wider, his role having been orally amended to cover Kenya operations only. The court applied Miguna Miguna v Attorney General, holding that an employee who accepts negotiated terms cannot plead discrimination on learning a colleague earns more. Regarding Mr. Githae, the Respondent denied he was junior, and any pay difference could reflect promotions, experience and length of service.
Whether failure to appraise and underpayment of bonuses amounted to unfair labour practices
Not established; the bonus complaint was rectified and no detriment from the appraisal omission was shown.
The court accepted that Article 41 guarantees fair labour practices, but found that the bonus underpayment complaint had been corrected with a back-payment, and the failure to conduct appraisals was not shown to have operated against the Claimant. No evidence linked the omission to any disadvantage in salary review or bonus awards, so the claim of unfair labour practices failed.
Legal principles established
#- Section 40(1) of the Employment Act requires at least one month's notice for redundancy and notice is intended to enable real consultation to avert, minimise or mitigate terminations.
- Consultation in a redundancy must be real and meaningful, not cosmetic or a charade.
- An employee who negotiated his own contract terms cannot plead discrimination merely because another employee negotiated a higher salary.
Court orders
#- 1.Award of 8 months' salary as compensation for the unfair redundancy, being 8 x 476,280 = KShs. 3,810,240/=.
- 2.Order that the Claimant's log book in respect of his motor vehicle be released to him.
- 3.Order that the Respondent pay the costs of the suit.
- Jurisdiction invoked
- Constitutional and employment claims under Articles 23, 27, 35 and 41 of the Constitution and the Employment Act; reliefs sought under Article 23(3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Ithau Wambua v Liberty Kenya Holdings Limited (Cause 1237 of 2015) (Employment and Labour) [2019] KEELRC 1749 (KLR)", Case Analysis (2019). Employment Cause (Memorandum of Claim filed 15th July 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1749/eng@2019-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.