Juma Onyango William v Kipepeo Group of Hotels [2020] KEELRC 227 (KLR)
The bottom line
#A Kenyan hotel cook won Kshs. 145,894 because his employer skipped the legal steps required before declaring redundancy.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination on account of redundancy was unfair
Termination was unfair; the employer failed to justify the redundancy and did not comply with the mandatory procedure in section 40 of the Employment Act
The claimant produced a termination letter dated 2.4.2016 showing the employment ended on account of closure of the hotel due to loss of business. The respondent never entered appearance and the facts were not rebutted. Section 40 requires notice to the employee and the labour officer, and due regard to seniority, skill, ability and reliability in selection. No such procedure was shown. The respondent was still operating other branches, undermining the justification for redundancy.
Whether the claimant is entitled to salary in lieu of notice and compensation
Entitled to one month's salary in lieu of notice (Kshs. 14,000) and 6 months' salary compensation (Kshs. 84,000) under section 49, having served almost 4 years and not contributed to the termination through misconduct
Having found the termination unfair, the court exercised its discretion under section 49 of the Employment Act. It considered the length of service (almost 4 years) and the absence of misconduct as factors. The court awarded 6 months' gross salary as compensation rather than the 12 months claimed, and one month's notice pay as pleaded.
Whether the claimant is entitled to accrued leave
Leave granted at 1.75 days per month pro rata under section 28, equalling 78.75 days; award limited to the pleaded sum of Kshs. 33,894
The leave claim was uncontroverted. The court applied section 28 of the Employment Act at the rate of 1.75 days per month over the period of service, computing 78.75 leave days worth Kshs. 42,403.85, but awarded only the lower sum actually pleaded, being Kshs. 33,894.
Whether the claimant is entitled to severance pay
Severance pay refused as the redundancy was compensated as unfair termination under section 49
Although redundancy normally attracts severance pay under section 40, the court treated the defective redundancy as an unfair termination and held that compensation under section 49 adequately covered the loss, so a separate severance award would be duplicative.
Legal principles established
#- Redundancy is a legitimate ground for terminating employment provided there is a valid reason based on operational requirements and fair procedure under section 40 is followed
- The burden of proving unfair termination rests on the employee under section 47(5) of the Employment Act
Court orders
#- 1.Judgment entered for the claimant against the respondent as follows: Notice Kshs. 14,000; Compensation Kshs. 84,000; Unpaid salary Kshs. 14,000; Leave earned Kshs. 33,894; Total Kshs. 145,894
- 2.The award is subject to statutory deductions
- 3.Costs of the suit to the claimant
- 4.Interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (section 40, 45, 47(5), 49, 28) — suit commenced 6.7.2016; formal proof proceedings
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngongo & 2 others v Roche Kenya Limited (Cause 426, 427 & 428 of 2019 (Consolidated)) [2021] KEELRC 1047 (KLR)[2021] KEELRC 1047 (KLR)2 Sept 2021
Cite this brief
#Cite this brief
Caselaw, "Juma Onyango William v Kipepeo Group of Hotels [2020] KEELRC 227 (KLR)", Case Analysis (2020). Cause No. (not stated in judgment; filed 6.7.2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/227/eng@2020-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.