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ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 278 (KLR)

Julius Onyango Agutu v Kisumu Water and Sewerage Company Ltd [2021] KEELRC 278 (KLR)

Employment and Labour Relations Court
8 December 2021
701 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled Kisumu Water's driver redundancy unfair because the employer skipped the required 30-day notices and couldn't prove a genuine reason.

What this practically means

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Executive summary

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The Claimant was employed by Kisumu Water & Sewerage Co Ltd as a driver by letter dated 3 June 2015. On 24 January 2017 the Respondent notified him that his position had become redundant because the motor vehicle assigned to him had been inoperational for over three months, with the redundancy effective on 27 January 2017. He sued for unfair termination and breach of contract. The Court framed three issues: unfair termination, breach of contract, and appropriate remedies. On procedural fairness, the Court found the Respondent failed to comply with section 40(1)(a) of the Employment Act, 2007, which required a 30-day advance notice to the trade union and the local labour officer; the Respondent did not disclose when notice was served on the union and the labour officer. On substantive fairness, the reason given (the assigned vehicle could not be inspected for lack of a log-book) was not proved valid and fair: the Claimant's assertion that he would be allocated other vehicles was unrebutted, and the Respondent did not disclose its establishment number of drivers or the vehicles in use. The termination was declared unfair. On breach of contract, the Claimant pleaded withheld salaries and terminal dues but led no evidence, so those claims failed. Considering about three years of service, the Court awarded compensation equivalent to four months' gross salary (January 2017 gross salary of Kshs 46,473/-), amounting to Kshs 185,892/23. Because the Claimant failed to file submissions as agreed, he was denied costs. Judgment was delivered through Microsoft Teams on 8 December 2021.

Key legal issues

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01

Procedural fairness of the redundancy

Holding

Procedurally unfair because the employer did not prove it gave the required 30-day advance notice to the trade union and local labour officer under section 40(1)(a) of the Employment Act, 2007

Reasoning

Section 40(1)(a) requires an employer to issue a one-month notice before redundancy to the employee, the trade union (where applicable) and the local labour officer. Although the Respondent notified the Claimant and the union of the redundancy by letter dated 24 January 2017, it could not disclose when the notice was served on the trade union and the local labour officer. The effective date of redundancy was 27 January 2017, far less than the 30 days required, so the process was procedurally unfair.

p. 2
02

Substantive fairness of the redundancy

Holding

The employer did not prove valid and fair reasons for the redundancy

Reasoning

The reason given was that the vehicle assigned to the Claimant could not be inspected by the NTSA for lack of a log-book and could not be driven. The Claimant's assertion that he would be allocated other vehicles from time to time was not rebutted. The Respondent also failed to disclose the number of drivers on its establishment and the total vehicles in use at the material time, leaving the Court unable to verify the operational justification for declaring the driver redundant.

p. 2
03

Remedies and compensation

Holding

Compensation of the equivalent of 4-months gross salary (Kshs 185,892/23) awarded based on about 3 years of service

Reasoning

Having found both procedural and substantive unfairness, the Court assessed compensation under section 49 of the Employment Act. Considering the Claimant's length of service of about 3 years, it fixed compensation at 4-months gross salary. The gross salary as at January 2017 was Kshs 46,473/-, producing an award of Kshs 185,892/23. The breach of contract claim failed for want of proof, so no terminal dues or withheld salaries were awarded.

p. 2
04

Breach of contract

Holding

Not proved; claims for withheld salaries and terminal dues dismissed

Reasoning

The Claimant pleaded withheld salaries and terminal dues but led no evidence in support of these alleged breaches. The Court, applying the burden of proof on a party alleging a fact, found the claims unproved and declined to grant any relief on the breach of contract head.

p. 2

Legal principles established

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  • Procedural fairness in redundancy requires written notice to the employee or trade union and the local labour officer under section 40(1) of the Employment Act, 2007
  • An employer must prove valid and fair reasons for a redundancy; failure to disclose establishment numbers and vehicles in use defeats the claimed reason
  • Compensation under section 49 may be assessed by reference to length of service

Court orders

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  1. 1.Declaration that the termination of the Claimant's employment on account of redundancy was unfair
  2. 2.Award of compensation equivalent of 4-months gross salary, Kshs 185,892/23
  3. 3.Denial of costs to the Claimant for failure to file submissions as agreed (each party to bear own costs implied)

Authorities

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Legislation

  • Employment Act, 2007section 40(1)
  • Employment Act, 2007section 40(1)(a)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance unfair termination and breach of contract cause)

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, "Julius Onyango Agutu v Kisumu Water and Sewerage Company Ltd [2021] KEELRC 278 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/278/eng@2021-12-08

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