H. Young Company (E.A) Limited v Irene Wambui Wanjiru [2021] KEELRC 61 (KLR)
The bottom line
#A Kenyan court ruled that even a genuine redundancy is unfair if the employer skips the mandatory written notice to the worker and labour officer.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination of the respondent's employment was lawful and fair
The termination was a redundancy carried out without the mandatory written notice under Section 40(1)(b) of the Employment Act to the employee and the labour officer, hence unprocedural and unfair under Section 45(2)(c)
The appellant adduced evidence that the respondent and three others were laid off because the workload at the Gatundu road project had drastically reduced, considering seniority, skills and first-in-last-out. Although redundancy was a valid operational reason, there was no evidence of written notice of at least one month to the respondent and the labour officer as Section 40(1)(b) mandates. The notice period also enables explanation of reasons and selection criteria and a hearing under Section 41. Failure of this mandatory procedure denies the employee fairness and invalidates the otherwise valid reason.
Whether the award of six months' salary as compensation was excessive
Yes; the trial court failed to consider applicable principles and comparable case law, and the award was reduced to three months' salary (Kshs 84,390)
Guided by Section 49(1)(c) and 49(4) of the Employment Act, the court considered that the respondent served only one year, was laid off for operational reasons, received all terminal benefits and a discharge certificate, and her employment was tied to the project's duration. Comparable authorities awarded 2-3 months' salary for similar or longer service. The trial court failing to consider these factors made the award amenable to being set aside.
Legal principles established
#- A first appellate court must reconsider and evaluate the evidence afresh while making due allowance for not having heard the witnesses
- An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or the judge proceeded on wrong principles
- Written notice of intended redundancy to the employee and the labour officer at least one month before termination under Section 40(1)(b) of the Employment Act is mandatory, and failure to comply renders the termination unprocedural and unfair under Section 45(2)
Court orders
#- 1.The appeal is dismissed on the issue of the lawfulness and fairness of the termination; the finding that the termination was unlawful and unfair is upheld
- 2.The award of six (6) months' salary in compensation is set aside and substituted with an award of the equivalent of three (3) months' salary, Kshs 84,390 (28,130 x 3)
- 3.The Appellant to pay half the costs of the suit before the trial Court and this Court
- On appeal from
- Magistrate's Court at Gatundu
- not stated (Employment cause)
- Jurisdiction invoked
- First appellate jurisdiction over the magistrate's court (Employment and Labour Relations Court); Employment Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "H. Young Company (E.A) Limited v Irene Wambui Wanjiru [2021] KEELRC 61 (KLR)", Case Analysis (2021). Appeal from Gatundu Principal Magistrate's Court (Employment cause), judgment delivered 17th August 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/61/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.