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ELRCPartially AllowedEmployment cause (Memorandum of Claim dated 27th January 2017)· [2020] KEELRC 684 (KLR)

Ali Sese v Ready Consultancy Limited [2020] KEELRC 684 (KLR)

Employment and Labour Relations Court
28 May 2020
LNLinnet Ndolo
1,429 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court awarded a security guard Kshs. 264,264 after his employer's redundancy ignored mandatory legal procedures under Section 40.

What this practically means

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Executive summary

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The Claimant, employed as a Security Guard from September 2009 at a monthly salary of Kshs. 20,020, sued the Respondent alleging unlawful termination of his employment on 10th October 2016 on account of redundancy in violation of Section 40 of the Employment Act. He sought salary in lieu of notice, leave pay, severance pay, 12 months' compensation, a certificate of service and costs. The Respondent denied employing him on contractual basis and asserted that the redundancy letter was erroneously issued and later recalled, with the Claimant being offered a transfer to Mombasa Maize Millers Ltd (Kisumu) on similar terms, which he declined. The court framed two issues: whether the termination was unlawful and whether the remedies were due. The court found that the Respondent's allegations of a revoked redundancy and refusal of transfer were unverified and unproved, as its witness did not personally deliver the transfer letter and the alleged witnesses and note authors were not called. The redundancy letter therefore stood as the only solid evidence. Applying Section 40, the court held that the Respondent made no attempt to comply with any of its conditions and, following precedent, that such a redundancy is unfair under Section 45. The Claimant's claim was allowed in full except that compensation was fixed at 8 rather than 12 months' salary. Judgment of Kshs. 264,264 was entered with interest from the date of judgment, plus a certificate of service and costs.

Key legal issues

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01

Whether the termination on account of redundancy was lawful

Holding

The termination was unfair as the Respondent did not comply with any of the conditions under Section 40 of the Employment Act

Reasoning

The redundancy letter of 10th October 2016 was the only solid evidence; the Respondent's allegations that it was revoked and a transfer offered were unsupported, with the author of handwritten notes and alleged witnesses not called. No attempt was made to comply with Section 40's conditions on notices, selection criteria and statutory dues.

p. 3
02

Whether the Respondent's claim of revoked redundancy and refusal of transfer was proved

Holding

The allegations were unverified and unproved because no supportive witnesses were called

Reasoning

The Respondent's witness did not personally hand over the transfer letter, and the persons alleged to have witnessed the Claimant's refusal to accept it, as well as the author of the note on the show cause letter, were not called to testify. Serious allegations unsupported by evidence cannot displace the documentary redundancy letter.

p. 3

Legal principles established

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  • A redundancy undertaken outside Section 40 of the Employment Act is unfair within the meaning of Section 45
  • Redundancy is undertaken at the instance of the employer and the conduct of the employee is not in question

Court orders

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  1. 1.Judgment entered in favour of the Claimant for Kshs. 264,264 being 8 months' salary in compensation, 1 month's salary in lieu of notice, leave pay for 1 year and severance pay for 7 years
  2. 2.The decretal amount to attract interest at court rates from the date of judgment until payment in full
  3. 3.The Claimant to be issued with a certificate of service
  4. 4.The Claimant awarded costs of the case

Authorities

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Legislation

  • Employment ActSection 40
  • Employment ActSection 45
  • Employment ActSection 2
  • Labour Relations Actcorresponding definition of redundancy
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 40
  • Civil Procedure ActSection 18

Cases cited (2)

  • Jane I Khalechi v Oxford University Press E.A. Ltd
    [2013] eKLR
  • Fatma Ali Dabaso v First Community Bank Limited
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (Sections 40 and 45 invoked)

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, "Ali Sese v Ready Consultancy Limited [2020] KEELRC 684 (KLR)", Case Analysis (2020). Employment cause (Memorandum of Claim dated 27th January 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/684/eng@2020-05-28

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