Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedEmployment and Labour Relations Cause (Memorandum of Claim dated 3rd February 2015, amended 25th January 2019)· [2020] KEELRC 191 (KLR)

Thomas Mboya Otondo v Special Ministries [2020] KEELRC 191 (KLR)

Employment and Labour Relations Court
19 November 2020
MOMaureen Onyango
2,470 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled an employer's failure to follow the redundancy notice procedure made a termination unfair, awarding the worker Kshs.178,658.60.

What this practically means

#

Executive summary

#
Thomas Mboya, a watchman/cleaner employed by Special Ministries, sued alleging his employment was unfairly terminated on account of redundancy contrary to section 40 of the Employment Act. He sought a declaration of unfair termination, terminal benefits, costs, interest and a certificate of service. The Respondent denied the claim, asserting the Claimant absconded duty, that it was a non-profit facing financial constraints, and that it paid him Kshs.12,680 as full and final dues. The suit was disposed of by written submissions. The court reproduced the termination letter dated 8th October 2012, which gave financial constraints as the reason for termination, and applying the statutory definition of redundancy held that the termination was on account of redundancy and not abscondment, the Respondent's defence being materially contradicted by the clearance and payment offered. The court found the Respondent had adduced no evidence of compliance with the mandatory conditions in section 40(1) - no notices to the employee or labour officer and no payment in lieu of notice - and, following Francis Maina Kamau v Lee Construction, found the termination unfair. On remedies, the court awarded pay in lieu of 3 months' notice (Kshs.33,022.20), salary arrears for July-October 2012 (Kshs.44,029.60), annual leave of 21 days per year for 4 years (Kshs.35,562.40) and 6 months' gross salary compensation under section 49 (Kshs.66,044.40), totalling Kshs.178,658.60. The underpayment, house allowance and severance pay claims failed; severance was refused to avoid double compensation. The Claimant was granted a certificate of service, costs of the suit and interest at court rates from the date of judgment.

Key legal issues

#
01

Nature of the termination - redundancy or abscondment

Holding

The termination was on account of redundancy, not absconding duty, because the reason given in the termination letter was financial constraints facing the Respondent

Reasoning

The court reproduced the termination letter dated 8th October 2012 which gave financial constraints as the reason. Section 2 of the Employment Act defines redundancy as involuntary loss of employment where services are superfluous. Since the letter cited financial constraints and the Respondent's defence acknowledged financial constraints, the court found the termination was redundancy and the abscondment defence was contradicted by the clearance letter and payment offered.

p. 3
02

Procedural fairness of the redundancy under section 40

Holding

The termination was unfair as the Respondent did not comply with section 40's mandatory conditions

Reasoning

Section 40(1) prescribes mandatory conditions: notice to the employee personally and the labour officer, payment in lieu of notice, leave pay and severance pay. The Respondent adduced no evidence of issuing notices to the Claimant or the labour officer, nor of paying salary in lieu of notice. Following Francis Maina Kamau v Lee Construction, non-compliance renders the termination unfair under section 45.

p. 3
03

Remedies for unfair termination

Holding

Claimant awarded 3 months' notice pay, salary arrears, annual leave and 6 months' gross salary compensation; severance and underpayment claims dismissed

Reasoning

The contract dated 1st November 2008 required 3 months' notice, so notice pay was awarded based on the statutory minimum wage plus 15% house allowance. Salary arrears for July-October 2012 succeeded as payment was not proved. Leave pay of 21 days per year for 4 years was awarded as no evidence of leave or payment in lieu was adduced. Compensation of 6 months' gross salary under section 49 reflected the roughly 4 years of service; severance was refused to avoid double compensation.

p. 4

Legal principles established

#
  • Failure by an employer to comply with the conditions in section 40 of the Employment Act renders a redundancy termination unfair under section 45
  • In dismissal on account of absconding duty, an employer must show steps taken to inform the employee that dismissal would result if they did not report back

Court orders

#
  1. 1.Award of Kshs.33,022.20 being pay in lieu of 3 months' notice
  2. 2.Award of Kshs.44,029.60 as salary arrears for July-October 2012
  3. 3.Award of Kshs.35,562.40 as annual leave pay (21 days for each of the 4 years worked)
  4. 4.Award of Kshs.66,044.40 being 6 months' gross salary as compensation for unfair termination
  5. 5.Total award of Kshs.178,658.60
  6. 6.Claimant entitled to a certificate of service under Section 51 of the Employment Act
  7. 7.Claimant awarded costs of the suit with interest at court rates from date of judgment till payment in full

Authorities

#

Legislation

  • Employment Actsection 40
  • Employment Actsection 40(1)(a)-(g)
  • Employment Actsection 2 (definition of redundancy)
  • Employment Actsections 41, 42, 43, 44, 45
  • Employment Actsection 49 (including 49(1)(c))
  • Employment Actsection 51
  • Employment Actsection 35(6)
  • Employment Actsection 31(1) and (2)
  • Evidence ActSections 107-109
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (9)

  • Godfrey Andabwa Ashiono v Coconut (K) Limited
    [2019] eKLR
  • David Nyanjui Mburu v Sunmatt Limited
    [2017] eKLR
  • Godfrey Anjere v Unique Suppliers Limited
    Nairobi ELRC Cause 65 of 2011
  • Stephen Ouma Ludende v Radar Limited
    [2019] eKLR
  • Judith Atieno Owuor v Sameer Agriculture and Livestock Limited
    [2020] eKLR
  • Evans Otieno Nyakwana v Cleophas Bwana Ongaro
    [2015] eKLR
  • Stephen Edewa v Lavington Securities Limited
    ELRC Cause No. 891 of 2019
  • International Planned Federation v Pamela Ebot Arrey Effiom
    [2016] eKLR
  • Francis Maina Kamau v Lee Construction
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment cause)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Thomas Mboya Otondo v Special Ministries [2020] KEELRC 191 (KLR)", Case Analysis (2020). Employment and Labour Relations Cause (Memorandum of Claim dated 3rd February 2015, amended 25th January 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/191/eng@2020-11-19

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