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ELRCDismissedELRC Cause (Memorandum of Claim dated and filed 13th February 2018; related Cause ELRC No. 336 of 2017: KLDTAWU v A to Z Transporters Limited, formerly Nairobi ELRC Cause No. 2615 of 2016)· [2021] KEELRC 1140 (KLR)

Woodsome Ochwo Mwanika v A To Z Transporters Limited [2021] KEELRC 1140 (KLR)

Employment and Labour Relations Court
29 July 2021
LNLINNET NDOLO
1,498 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 confirmed that an employer who followed the redundancy rules in Section 40 of the Employment Act owed a dismissed employee nothing more.

What this practically means

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Executive summary

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The Claimant sued the Respondent for compensation for unfair termination of employment and terminal dues, alleging there was no valid reason for the termination and that due procedure was not observed. He sought one month's salary in lieu of notice, service pay, twelve months' salary as compensation, a certificate of service, costs and interest. The Respondent admitted the employment relationship but maintained that the termination was a lawful redundancy conducted in strict compliance with Section 40 of the Employment Act: the Claimant's Union and the Mombasa County Labour Officer were notified more than a month before termination, the reasons and extent of the redundancy were given, and statutory dues (leave pay, salary in lieu of notice and severance pay) totalling Kshs. 50,275 less a Kshs. 40,000 Sacco loan were paid. The Respondent also pointed to a related pending Cause filed by the Claimant's Union on the same cause of action. The Court framed two issues: the lawfulness and fairness of the termination, and entitlement to remedies. It found the Respondent had issued a redundancy notice to the labour officer and the union on 28th October 2016, that the company ceased operations with all employees declared redundant progressively, that the Claimant was not specifically targeted, and that one month's notice pay and other statutory dues were paid. The redundancy was held lawful. Overtime and public holiday claims raised in submissions were neither pleaded nor proved. The entire claim was disallowed with each party bearing their own costs. Judgment delivered at Mombasa on 29th July 2021 by Linnet Ndolo, Judge, via Microsoft Teams owing to COVID-19 restrictions.

Key legal issues

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01

Whether the termination of the Claimant's employment on account of redundancy was lawful and fair

Holding

The termination was lawful and fair; the Respondent complied with the conditions in Section 40 of the Employment Act, including notifying the union and the labour officer more than a month in advance, paying one month's notice pay, accrued leave and severance pay at 15 days per completed year of service

Reasoning

The Court set out the definition of redundancy in Section 2 of the Employment Act and the statutory conditions in Section 40. Evidence showed the Respondent issued a redundancy notice to the County Labour Officer, Mombasa, and to the Claimant's Union on 28th October 2016 setting out the reasons for and extent of the redundancy. The Respondent's witness testified that the company had ceased operations with all employees declared redundant progressively. There was no evidence the Claimant was specifically targeted, and statutory dues including one month's pay in lieu of notice were paid. The termination was therefore lawful.

p. 3
02

Whether the Claimant is entitled to the remedies sought

Holding

No relief was granted; the entire claim was disallowed, and unpleaded claims for overtime and public holidays could not succeed

Reasoning

Having found the redundancy lawful and procedural, the Court held the claim for compensation without basis. The Respondent had paid statutory dues totalling Kshs. 50,275 less a Kshs. 40,000 Sacco loan. Claims for overtime and public holidays raised for the first time in final submissions failed because they were neither pleaded nor proved. The certificate of service was stated to have always been available for collection.

p. 4

Legal principles established

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  • The conditions under Section 40 of the Employment Act fall into three broad categories: redundancy and termination notices, objective selection criterion and payment of statutory dues

Court orders

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  1. 1.The Claimant's entire claim fails and is disallowed
  2. 2.Each party will bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 2
  • Employment Act, 2007Section 40
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, 2007, including Section 40, invoked by the parties); no specific constitutional article cited

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Woodsome Ochwo Mwanika v A To Z Transporters Limited [2021] KEELRC 1140 (KLR)", Case Analysis (2021). ELRC Cause (Memorandum of Claim dated and filed 13th February 2018; related Cause ELRC No. 336 of 2017: KLDTAWU v A to Z Transporters Limited, formerly Nairobi ELRC Cause No. 2615 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1140/eng@2021-07-29

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