Kenya Private Universities Workers Union v KAG East Africa [2021] KEELRC 188 (KLR)
The bottom line
#Kenya's Employment Court ruled the university's COVID-era redundancies unlawful for skipping required notices, but couldn't undo what had already happened.
What this practically means
#Executive summary
#Key legal issues
#Mootness of injunctive relief
The injunctive orders sought were overtaken by events because the retirements and redundancies took effect on 7th/8th July 2020, before the suit filed on 14th July 2020
The letters of retirement and redundancy dated 8th and 9th June 2020 gave one month's notice, so the actions took effect in early July 2020. The suit was filed on 14th July 2020 and interim orders granted on 15th July 2020, after the actions had already taken effect. Injunctions cannot restrain what has already happened, so those prayers failed.
Compliance with Section 40 of the Employment Act in redundancy
The redundancies were irregular and unlawful because notice was not issued to the Union and the local labour officer at least one month before effecting the redundancy, and no selection criteria were set out
Section 40(1)(a) and (c) requires notice of intended redundancy to the union and local labour officer at least one month before effecting the redundancy. Since the letters were issued on 8th June 2020 to take effect on 8th July 2020, the statutory one-month prior notification was impossible. The letters also did not set out selection criteria. The redundancy was therefore unlawful.
Particularisation and proof of unpaid wages
The claim for unpaid wages during unpaid leave failed because the Claimant did not name the affected employees or particularise the wages withheld
The Claimant did not state the names of employees sent on unpaid leave, declared redundant or retired, nor whether the retired employees had attained retirement age or whether the retirement procedure complied with the Respondent's procedures. Without particularisation of the wages allegedly withheld, the claim for refund could not be granted.
Legal principles established
#- Notice of intended redundancy must issue to both the union and the local labour officer at least one month before the redundancy is effected, as required by Section 40(1)(a) and (c) of the Employment Act
- Redundancy is irregular and unlawful where the employer fails to set out the selection criteria for the employees declared redundant
- A court cannot grant injunctive relief in respect of acts that have already been completed
Court orders
#- 1.A declaration that the redundancy was unlawful for want of notification to the Union and the Labour Officer as required under Section 40(1)(a) of the Employment Act and for failure to set out the selection criteria for employees declared redundant
- 2.Dismissal of all other prayers in the claim for want of proof
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act read with Sections 19 and 94 of the Employment Act and Rule 17 of the Employment and Labour Relations Court (Procedure) Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Private Universities Workers Union v KAG East Africa [2021] KEELRC 188 (KLR)", Case Analysis (2021). Not stated in the judgment (Memorandum of Claim dated 14th July 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/188/eng@2021-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.