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ELRCPartially AllowedCause No 2295 of 2015· [2020] KEELRC 702 (KLR)

Edgar Maingi Mwinzi v Total Kenya Limited [2020] KEELRC 702 (KLR)

Employment and Labour Relations Court
17 July 2020
MOMaureen Onyango
4,680 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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An employer's redundancy was lawful, but skipping the one-month notice to the Labour Officer cost Total Kenya one month's salary plus costs.

What this practically means

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Executive summary

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The Claimant, employed as an Export Logistics Officer from 30 June 2011, sued alleging discrimination and unfair termination on account of redundancy contrary to the Employment Act and his contract, seeking declarations, 12 months' compensation, pension contributions, bonus, house allowance, a loan write-off, costs and interest. The Respondent maintained that the position became redundant due to the introduction of the Single Customs Territory and reduced Uganda export documentation, that it followed its separation procedures and section 40 of the Employment Act, and that bonus and house allowance claims were unfounded. The matter proceeded by written submissions on the admitted redundancy. The court held that the Notice of Redundancy dated 17 June 2015, effective 20 July 2015, complied with section 40(1)(b) as regards the employee, but that no proper notice was issued to the Labour Officer at least one month before the redundancy, contrary to section 40(1)(b) as explained in Thomas De La Rue v Omutelema. It found no proof of discrimination, no requirement of pre-redundancy consultation under Kenyan law (following Pure Circle and Kenya Airways), and held the redundancy justified. All heads of relief failed except the notification defect: the claimant received notice pay and leave pay; the bonus lacked legitimate expectation; the letter of appointment showed a basic salary with no house allowance entitlement; the loan claim failed on privity; and pension claims fell outside the court's jurisdiction under the Retirement Benefits Act. The court awarded one month's salary of Kshs.85,000, costs of the suit, and interest from the date of judgment.

Key legal issues

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01

Compliance with section 40(1)(b) - notice to the labour officer

Holding

The notice to the employee was compliant (33 days) but no proper notice was issued to the Labour Officer at least one month before the redundancy; the letter sent 7 days after the redundancy did not constitute proper notice

Reasoning

The Notice of Redundancy dated 17 June 2015 took effect 20 July 2015, satisfying the one-month period as regards the employee. However, the only document reaching the Labour Officer was a letter addressed to the Claimant dated 27 July 2015, after the redundancy took effect. Section 40 requires the labour officer's notice not less than one month prior, following Thomas De La Rue.

p. 5
02

Whether the Claimant was discriminated against in the selection for redundancy

Holding

No discrimination proved; the Claimant did not demonstrate any incident of discrimination or differential treatment

Reasoning

The Claimant neither demonstrated an incident of discrimination nor submitted on differential treatment. The Respondent, through an email from Irene Muinde, showed it considered his qualifications, skills, experience and availability and conducted an internal search for alternatives.

p. 5
03

Whether the redundancy was justified and whether consultation was required

Holding

There was justification for the redundancy arising from changes in the business environment (Single Customs Territory, impact on Uganda documentation), and Kenyan law does not require pre-redundancy consultation

Reasoning

The Respondent genuinely reorganised following the Single Customs Territory and reduced documentation for Uganda exports. Following Pure Circle and Kenya Airways, the Employment Act does not provide for pre-redundancy consultation, only post-redundancy dispute resolution.

p. 5

Legal principles established

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  • Where an employee is not a member of a trade union, the redundancy notice under section 40(1)(b) must be given to both the employee personally in writing and the labour officer, not less than one month before the effective redundancy date
  • Kenyan law does not require pre-redundancy consultation

Court orders

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  1. 1.Award to the Claimant of one month's salary in the sum of Kshs.85,000 in lieu of the failure to notify the Labour Officer of the redundancy
  2. 2.Costs of the suit awarded to the Claimant
  3. 3.Interest to accrue from the date of judgment

Authorities

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Legislation

  • Employment ActSections 5, 5(2), 5(3)(a), 31, 31(1), 31(2), 40(1)(a)-(g), 43, 45(1), 45(5)
  • Constitution of KenyaArticles 27, 41, 10, 48, 159(2)(d)
  • Retirement Benefits ActNot specified
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (10)

  • Kenya Chemical & Allied Workers Union v Bamburi Cement Limited
    [2013] eKLR
  • Communication Workers Union of Kenya v Telkom Kenya Limited
    [2018] eKLR
  • Namwel Nyakundi Gekone v Riley Services Limited
    [2015] eKLR
  • Dorcas Kemunto Wainaina v IPAS
    [2018] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others
    [2014] eKLR
  • Julie Topiria Njeru v Kenya Tourist Board
    Cause 886 of 2010
  • D. K. Njagi Marete v Teachers Service Commission
    [2017] eKLR
  • Julius Eshitoli Waka v Total Kenya Limited
    Cause 2298 of 2015
  • Thomas De La Rue (K) Ltd v David Opondo Omutelema
    [2013] eKLR
  • Pure Circle (K) Ltd v Paul K. Koech & 12 others
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act No. 11 of 2007 (the judgment does not cite a specific constitutional provision establishing jurisdiction; pension issues held outside jurisdiction under the Retirement Benefits Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Edgar Maingi Mwinzi v Total Kenya Limited [2020] KEELRC 702 (KLR)", Case Analysis (2020). Cause No 2295 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/702/eng@2020-07-17

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