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 AllowedCause No. 1036 of 2015· [2020] KEELRC 492 (KLR)

George Maburi Nyaundi v Film Corporation of Kenya [2020] KEELRC 492 (KLR)

Employment and Labour Relations Court
17 September 2020
HWHellen S. Wasilwa
1,669 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled an employer skipped legally required redundancy steps, costing it over Kshs. 204,000 plus costs and interest.

What this practically means

#

Executive summary

#
The Claimant, employed by the Respondent as a Driver/Mechanic since January 2007 at a monthly salary of Kshs. 13,204.30, claimed he was unfairly terminated on account of redundancy. In August 2014 he was ordered to proceed on leave and on reporting back on 14/9/2014 was issued a termination letter dated 15/9/2014 citing lack of enough resources. He sought declarations of unfair dismissal, terminal dues and compensatory damages totalling Kshs. 1,130,721.95, interest and costs. The Respondent, though absent at the hearing, filed submissions asserting compliance with the Employment Act and that the Claimant had been paid his dues but failed to collect them. The Claimant relied on authorities on burden of proof and redundancy procedure, seeking notice pay, leave pay, overtime, severance pay and 12 months' compensation. The Respondent argued the Claimant had not discharged his burden under Sections 43 and 47(5), that notice in writing was given, and that Section 40(1)(c) was inapplicable because the Respondent was defunct. The court found the termination was in effect a redundancy and that the Section 40 conditions were not followed: the termination was backdated, no notice was issued and no redundancy dues paid. Holding the redundancy unlawful and unprocedural, the court awarded one month's salary in lieu of notice, severance pay for 7 years at 15 days' pay per year, leave pay for 2013, and 10 months' salary compensation, totalling Kshs. 204,664.15, with costs and interest at court rates from the date of judgment.

Key legal issues

#
01

Whether the Claimant's termination amounted to an unlawful and unprocedural redundancy

Holding

Yes - the Respondent did not comply with Section 40 of the Employment Act; no notice was issued and no redundancy dues were paid.

Reasoning

The termination letter cited lack of enough resources, which in effect refers to redundancy. Section 40 prescribes conditions including notification of the employee personally in writing and the labour officer, payment of leave in cash, one month's notice or wages in lieu, and severance pay. The court found no indication these were followed, noting the termination was backdated and no redundancy dues paid.

p. 3
02

Whether the Claimant was entitled to terminal dues, leave pay and compensation

Holding

The Claimant was awarded one month's notice pay, severance pay for 7 years, leave pay for 2013, and 10 months' salary compensation.

Reasoning

Having found the redundancy unlawful and unfair, the court exercised its discretion under Section 49 of the Employment Act to award compensation, and ordered statutory dues including notice pay, severance at 15 days' pay per completed year of service, and unpaid leave for 2013, totalling Kshs. 204,664.15.

p. 3

Legal principles established

#
  • An employer must comply with the conditions in Section 40 of the Employment Act before terminating on account of redundancy; failure to do so renders the termination unlawful and unprocedural.

Court orders

#
  1. 1.1 month salary in lieu of notice of Kshs. 13,204.30
  2. 2.Severance pay equivalent to 15 days salary for each year worked of Kshs. 46,215.05
  3. 3.Leave pay for year 2013 of Kshs. 13,204.30
  4. 4.Compensation equivalent to 10 months' salary for the unlawful and unfair redundancy of Kshs. 132,040.5
  5. 5.Total award of Kshs. 204,664.15
  6. 6.Respondent to pay costs of the suit plus interest at Court rates from the date of judgment

Authorities

#

Legislation

  • Employment ActSection 40
  • Employment ActSection 43
  • Employment ActSection 47(5)
  • Employment ActSection 36
  • Employment ActSection 27(2)
  • Employment ActSection 49

Cases cited (4)

  • Stanley Mwangi Gachungu & another v Barclays Bank of Kenya Ltd
    [2019] eKLR
  • Hesbon Ngaruiya Waigi v Equitorial Commercial Bank Limited
    [2013] eKLR
  • Paul Ngeno v Pyrethrum Board of Kenya
    [2013] eKLR
  • Kennedy Maina Mirera v Barclays Bank of Kenya Limited
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "George Maburi Nyaundi v Film Corporation of Kenya [2020] KEELRC 492 (KLR)", Case Analysis (2020). Cause No. 1036 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/492/eng@2020-09-17

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