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ELRCPartially AllowedCivil Suit No. 515 of 2003 (Originally High Court)· [2019] KEELRC 2429 (KLR)

Benson Ndwiga Njue & 108 others v Central Glass Industries Limited [2019] KEELRC 2429 (KLR)

Employment and Labour Relations Court
24 January 2019
HWHellen Wasilwa
3,560 words in judgment
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The bottom line

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Kenya's Employment Court ruled Kenya Breweries' 1999 redundancy unfair because it skipped required notices and selection criteria, awarding 73 ex-employees 12 months' salary each.

What this practically means

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Executive summary

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This Employment and Labour Relations Court decision, delivered by Hellen Wasilwa J on 24 January 2019, determined a claim by 73 former employees of Kenya Breweries Limited who were retired early in September 1999 during a company restructuring. Originally filed in the High Court as Civil Suit No. 515 of 2003, the Claimants sought a declaration that the early retirement was unlawful, audited accounts, payment of outstanding dues or damages, and costs. The Respondent defended on the basis that the redundancies arose from genuine operational difficulties, followed consultation with the Union and the Labour Officer, and that terminal dues were accepted in full and final settlement; it also argued the claim was time barred for want of authority to act at filing. The court framed three issues: limitation, validity and procedure of the redundancy, and remedies. It held that Order 1 Rule 13(2) is not mandatory as to timing and that authority given before hearing was valid, defeating the limitation objection. On the merits, although a redundancy situation arguably existed, the Respondent failed to demonstrate notice to the Claimants or the selection criteria used, contrary to Section 16A of the repealed Employment Act; the redundancy was therefore unfair and unjustified. The court awarded each of the 73 Claimants 12 months' salary as compensation for the unlawful redundancy, with costs and interest, having noted that dues including notice had already been paid. Prayers for audited accounts and further dues were effectively not granted.

Key legal issues

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01

Whether the claim was time barred for failure to file authority to act at institution

Holding

No — Order 1 Rule 13(2) is not mandatory as to timing; authority filed before hearing suffices

Reasoning

Order 1 Rule 13 allows one or more plaintiffs to act for others who authorise them. The rule is not couched in mandatory terms as to when the authority may be given. 68 Claimants gave authority (55 on 14.9.2015 and 13 on 19.12.2017), before hearing commenced, and the testifying witness stated he represented the others. Under Rule 21 of the ELRC (Procedure) Rules 2016 parties may proceed on documentary evidence, so the authority was valid and the claim was not time barred.

p. 3
02

Whether the early retirement/redundancy was valid and procedurally fair

Holding

The redundancy was unfair and unjustified — no notice or selection criteria demonstrated

Reasoning

Although the Respondent's financial difficulties could constitute a redundancy situation, the Respondent did not submit evidence of the company's performance at the time of the decision. More decisively, the Respondent did not deny failing to issue notices under Section 16A of the repealed Employment Act, and gave no explanation of the criteria used to select some employees over others. Failure to comply with the statutory conditions rendered the process unfair.

p. 4
03

What remedies flow from the unfair redundancy

Holding

12 months' salary compensation per Claimant; dues already paid not re-awarded

Reasoning

The court noted the Claimants had already received redundancy dues including notice. Balancing this, each of the 73 Claimants was awarded 12 months' salary as compensation for the unlawful redundancy, plus costs and interest. The itemised awards were set out for each named Claimant based on their individual monthly salaries.

p. 4

Legal principles established

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  • The rule on filing authority to act for multiple plaintiffs is not mandatory as to timing, and authority given before hearing commences is valid
  • Even where a true redundancy situation exists, the employer must follow the procedural conditions prescribed by statute
  • An employer must show termination is attributable to the redundancy, i.e. that the employee's services have been rendered superfluous
  • An employer who fails to demonstrate notice and selection criteria rendered the redundancy unfair and unjustified

Court orders

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  1. 1.Declaration that the redundancy effected on the Claimants was unfair and unjustified
  2. 2.Each of the 73 Claimants awarded 12 months' salary as compensation for unlawful redundancy, with the amounts itemised per Claimant
  3. 3.Costs of the suit to the Claimants
  4. 4.Interest on the award
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment/termination claims (claim transferred from High Court Civil Suit No. 515 of 2003)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Benson Ndwiga Njue & 108 others v Central Glass Industries Limited [2019] KEELRC 2429 (KLR)", Case Analysis (2019). Civil Suit No. 515 of 2003 (Originally High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2429/eng@2019-01-24

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