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ELRCPartially AllowedNot stated in the judgment as provided· [2020] KEELRC 1040 (KLR)

Patrick Nambila Mikuzi v Ashton Court Apartments Limited [2020] KEELRC 1040 (KLR)

Employment and Labour Relations Court of Kenya
22 May 2020
2,761 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a redundancy invalid because the employer never notified the Labour Officer, awarding the worker compensation and costs.

What this practically means

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Executive summary

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The Claimant sued the Respondent alleging that his employment as Caretaker/Cleaner from 10th June 2013 at a last salary of Kshs.14,300 was unfairly and unlawfully terminated by redundancy notified on 22nd February 2018 and effective 28th February 2018, contrary to Section 40 of the Employment Act, 2007. He sought a declaration of unfair termination, Kshs.458,750.30 in underpaid wages, Kshs.321,687 in damages, service pay, unpaid house allowance, costs, interest, and a certificate of service. The Respondent denied the employment relationship, challenged the authenticity of the appointment letter, maintained the redundancy was fair and that all dues were paid, and that the salary was consolidated and inclusive of house allowance. The matter was disposed of by written submissions. The court framed three issues: existence of an employer-employee relationship; lawfulness and fairness of the redundancy; and entitlement to reliefs. It found the appointment letter and notice of redundancy proved the employment relationship. It held the redundancy unprocedural and unfair because the Respondent failed to comply with the mandatory notice requirements of Section 40(1)(a) and (b), there being no evidence of notice to the Labour Officer. Judgment was entered for the Claimant for Kshs.65,458.70, comprising one month's salary in lieu of notice (Kshs.14,865.45), underpayments (Kshs.5,654.50), three months' salary as compensation (Kshs.44,596.35), and severance underpayment (Kshs.342.40), plus costs and interest at court rates from the date of judgment. The house allowance claim was dismissed as the salary was consolidated. The judgment was delivered electronically in line with COVID-19 directions.

Key legal issues

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01

Existence of an employer-employee relationship

Holding

The Claimant proved the relationship through the appointment letter and notice of redundancy

Reasoning

The court examined the appointment letter and the notice of redundancy, both of which confirmed the employment in the position of Caretaker/Cleaner. Relying on the approach in Elijah Kipkoros Tonui v Ngara Opticians, the court found the letters self-explanatory and sufficient to establish the employment relationship despite the Respondent's challenge to authenticity.

p. 3
02

Lawfulness and fairness of the redundancy

Holding

The redundancy was unprocedural and therefore unfair for failure to issue the notices required by Section 40(1)(a) and (b), particularly to the Labour Officer

Reasoning

Section 40(1)(a) as read with 40(1)(b) requires notices to affected employees and to the local Labour Officer. No evidence of notice to the Labour Office was availed. The court noted the notice to the Labour Officer serves as a control measure against unlawful termination clothed as redundancy, and non-compliance renders the process invalid and unfair.

p. 3
03

Entitlement to reliefs

Holding

Declaration of unfair termination granted; underpayment of Kshs.5,654.50, 3 months' compensation, one month's notice pay, severance shortfall of Kshs.342.40 awarded; house allowance claim dismissed

Reasoning

The court awarded equitable, modest remedies: one month's salary in lieu of notice, the calculated underpayment against the statutory minimum wage for a cleaner, 3 months' salary as compensation given the limited loss, and the severance shortfall for 4 complete years. The house allowance claim failed because the salary was consolidated.

p. 4

Legal principles established

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  • Compliance with the notice requirements of Section 40(1)(a) and (b) of the Employment Act, including notice to the Labour Officer, is mandatory for a valid redundancy
  • A termination that violates the mandatory provisions of Section 40 is unfair within the meaning of Section 45 of the Employment Act
  • Courts are bound to apply the statutory minimum wage by virtue of Section 48 of the Labour Institutions Act

Court orders

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  1. 1.Judgment entered in favour of the Claimant against the Respondent: one month's salary in lieu of notice Kshs.14,865.45
  2. 2.Underpayments of Kshs.5,654.50
  3. 3.3 months' salary compensation of Kshs.44,596.35
  4. 4.Underpayment of severance pay of Kshs.342.40, total award Kshs.65,458.70
  5. 5.Costs of the suit to the Claimant
  6. 6.Interest at court rates from the date of judgment until payment in full

Authorities

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Legislation

  • Employment Act, 2007Section 2 (definition of redundancy)
  • Employment Act, 2007Sections 40, 40(1)(a), 40(1)(b), 40(1)(g)
  • Employment Act, 2007Section 45
  • Labour Institutions ActSection 48
  • Regulations of Wages General (Amendment) Order2013, 2015 and 2017
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (10)

  • Christine Adot Lopeyio v Wycliffe Mwathi Pere
    (2013) eKLR
  • Mary Nyawira Karimi v Pure Circle (K) Limited
    (2018) eKLR
  • Luke Kinyua Kamunti v Amigos Nuts and Commodities Limited
    (2019) eKLR
  • Paul Wachiri Ndonga v Keroche Breweries
    null
  • Kenya Airways Limited v Aviation & Allied Workers Union Kenya & 3 Others
    (2014) eKLR
  • Elijah Kipkoros Tonui v Ngara Opticians T/A Bright Eyes Limited
    (2014) eKLR
  • Bernard Misawo Obora v Coca Cola Juices Kenya Limited
    [2015] eKLR
  • Charles Kambo Wamai v Bamburi Cement Limited
    (2013) eKLR
  • Margaret Mumbi Mwago v Intrahealth International
    (2017) eKLR
  • Anastacia Mutindi Kibutu v Liason Group (IB) Limited
    (2019) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Labour Institutions Act (specific constitutional provision not cited)

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, "Patrick Nambila Mikuzi v Ashton Court Apartments Limited [2020] KEELRC 1040 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1040/eng@2020-05-22

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