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ELRCDismissedCause No. 124 of 2015· [2019] KEELRC 1781 (KLR)

Mutavi Muindi v Valley Confectionary Limited [2019] KEELRC 1781 (KLR)

Employment and Labour Relations Court of Kenya
25 April 2019
MMM. Mbaru
1,533 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court in Nakuru dismissed a redundancy claim, ruling the worker had two separate employers and the employer followed fair procedure.

What this practically means

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Executive summary

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The claimant, a bread wrapper, sued Valley Confectionary Limited for unfair termination on account of redundancy, seeking reinstatement with back salaries or, in the alternative, compensation of Ksh.99,360.00, three months' notice pay, and leave for three years. He asserted he was employed in December 2009 by Valley Bakery Limited, which became the respondent upon a change of business name, and that no notice was issued nor terminal dues paid at termination in February 2012. The respondent denied ever operating as Valley Bakery Limited, asserting it was a distinct entity registered since 2004, that the claimant worked for it only from 1st May, 2011 to 17th July, 2012, and that terminal dues of Ksh.25,333.00, including notice pay and earned leave, were paid following negotiations with the trade union. The court found the respondent's human resource witness, Evelyn Gathoni Maina, unreliable, dishonest and repeatedly uncooperative, and treated her testimony with abundant caution. Relying on the Certificates of Service and section 51 of the Employment Act, 2007, the court held the claimant had two separate employments with distinct entities and that the claim of 14 years' service lacked legal basis; Valley Bakery should have been joined for the earlier period. Applying Kenya Airways Limited v Aviation & Allied Workers Union and Barclays Bank v Gladys Muthoni, the court found section 40 procedural fairness was satisfied, the employees having been notified and one month's notice paid within terminal dues. Reinstatement was refused as an exceptional remedy unavailable three years after termination. The claim was dismissed with each party bearing own costs.

Key legal issues

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01

Identity of employer and continuity of employment

Holding

The respondent was a distinct entity from Valley Bakery Limited; the claimant's employment with the respondent ran from 1st May, 2011 to 17th July, 2012 only, so any claim relating to the earlier period or 14 years of service fails

Reasoning

The claimant produced a Certificate of Service from Valley Bakery Limited for 2010-2011 while the respondent produced one for 2011-2012. The respondent was registered in 2004 and operated from different premises with different operations from Valley Bakery. There being no change of business name, the claim of 14 years' service lacked legal basis, and the earlier entity should have been joined for any earlier claims.

p. 2
02

Procedural fairness of redundancy under section 40 of the Employment Act

Holding

The respondent satisfied the procedural fairness required by section 40; notification to the employees and payment of one month's notice as part of terminal dues sufficed

Reasoning

The court relied on Kenya Airways Limited v Aviation & Allied Workers Union and Barclays Bank of Kenya Ltd v Gladys Muthoni on the requirements of general notice and consultation. The claimant testified employees were informed of impending dismissals upon the purchase of the bread wrapping machine, and he was called and told his services were no longer required, then paid one month's notice within terminal dues of Ksh.25,333.00.

p. 3

Legal principles established

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  • A Certificate of Service is the lawful record under section 51 of the Employment Act, 2007 confirming the period of employment
  • Where a claimant's employment with a different entity (Valley Bakery Limited) is evidenced and he was separately taken up by the respondent, that forms a different and separate employment

Court orders

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  1. 1.The claims made are without merit and are dismissed
  2. 2.Each party shall bear own costs

Authorities

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Legislation

  • Employment Act, 2007section 51
  • Employment Act, 2007section 10(6)
  • Employment Act, 2007section 40
  • Employment Act, 2007section 35
  • Employment Act, 2007section 49
  • Employment and Labour Relations Court Act, 2011section 12(3)

Cases cited (2)

  • Kenya Airways Limited versus Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • Barclays Bank of Kenya Ltd & another v Gladys Muthoni & 20 others
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, 2011; claim for unfair termination under the Employment Act, 2007

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, "Mutavi Muindi v Valley Confectionary Limited [2019] KEELRC 1781 (KLR)", Case Analysis (2019). Cause No. 124 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1781/eng@2019-04-25

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