Kenya Game Conservancy Tours and Safaris Workers Union v David Sheldrick Wildlife Trust [2021] KEELRC 659 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the grievants were declared redundant
No - the separation was not a redundancy but the result of the Respondent's unilateral variation of the employment contract
The court found no evidence that the Respondent contemplated a redundancy. The pith and substance was that the Respondent changed the contract terms and demanded signature on pain of leaving. The employees justifiably declined and were not privy to or consenting to the variations, so the redundancy case under Section 40 failed and severance pay was refused.
Whether the unilateral variation of the employment contract constituted unfair termination
Yes - the unilateral variation was a fundamental repudiation of the contract and an unfair labour practice violating Article 41 fair labour practices
At common law variation must be mutual; the Employment Act requires consultation, and variation of essentials such as duration and remuneration without consent violates Article 41. The employer took advantage of superior bargaining power. The grievants were thus unfairly terminated and entitled to compensation under Section 49.
Duration of service and entitlement to reliefs
The grievants served approximately half a year per the Respondent's letters; compensation limited to two months' salary, plus one month's pay in lieu of notice and unpaid August 2013 days
The grievants produced no documentary proof of appointment dates, and Respondent letters indicated half a year of service to 18th September 2013. Two months' compensation was comparable to the Kenya Credit Traders decision. Notice pay was due for termination without statutory compliance; the August 2013 claim was uncontroverted.
Legal principles established
#- Unilateral variation of a contract of service by an employer amounts to repudiation and violates the employee's right to fair labour practice under Article 41 of the Constitution
- An employer seeking to vary terms of a contract of service must consult the employees and obtain their concurrence or disagreement
- Redundancy requires both substantive and procedural compliance with Section 40 of the Employment Act; absent evidence an employer contemplated redundancy, a separation cannot be characterised as redundancy
Court orders
#- 1.Judgment entered for the grievant Dismas Ondiek Getate: 2 months' salary equivalent Kshs.24,000, one month's pay in lieu of notice Kshs.12,000, days worked in August 2013 Kshs.48,810, total Kshs.84,810
- 2.Judgment entered for the grievant Kevin Nyaunga Gesairo: 2 months' salary equivalent Kshs.22,000, one month's pay in lieu of notice Kshs.11,000, days worked in August 2013 Kshs.23,938, total Kshs.56,938
- 3.Costs of the suit assessed at Kshs.50,000/= payable to the Claimant
- 4.Interest at court rates from the date of judgment till payment in full
- Jurisdiction invoked
- First-instance jurisdiction under the Employment Act, 2007 over an unresolved trade dispute referred after failed conciliation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Game Conservancy Tours and Safaris Workers Union v David Sheldrick Wildlife Trust [2021] KEELRC 659 (KLR)", Case Analysis (2021). Cause No 567 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/659/eng@2021-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.