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ELRCPartially AllowedAppeal from Gatundu Principal Magistrate's Court (Employment cause), judgment delivered 17th August 2020· [2021] KEELRC 61 (KLR)

H. Young Company (E.A) Limited v Irene Wambui Wanjiru [2021] KEELRC 61 (KLR)

Employment and Labour Relations Court
16 December 2021
2,672 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 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

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Executive summary

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The appellant employer appealed against part of a magistrate's judgment at Gatundu delivered on 17th August 2020, which had found the termination of the respondent's employment unlawful and unfair and awarded her compensation equivalent to six months' salary. The appeal attacked both the finding of unfair termination and the quantum. The court, applying the Selle principle, reconsidered the evidence afresh. It found the termination was in substance a redundancy: the appellant laid off the respondent and three others because the workload on the Gatundu road project had reduced, using seniority, skills and first-in-last-out criteria. However, the appellant did not issue written notice of the intended redundancy at least one month in advance to the respondent and the labour officer as required by Section 40(1)(b) of the Employment Act, 2007, a mandatory procedural requirement tied to the hearing obligations under Section 41. The termination therefore failed the procedural fairness test under Section 45(2)(c), and the appeal on that issue was dismissed. On quantum, guided by Section 49(1)(c) and (4) and comparable authorities, the court held the trial court failed to consider applicable principles and reduced the award to three months' salary, Kshs 84,390. The respondent's claims for terminal benefits had been correctly dismissed at trial as they were paid. The appellant was ordered to pay half the costs of the suit before both courts.

Key legal issues

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01

Whether the termination of the respondent's employment was lawful and fair

Holding

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)

Reasoning

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.

p. 2
02

Whether the award of six months' salary as compensation was excessive

Holding

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)

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 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. 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

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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, "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.