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ELRCDismissedMemorandum of Claim dated 29th October, 2020· [2021] KEELRC 1330 (KLR)

Kenya Union of Commercial Food and Allied Workers v Gikanda Farmers Cooperative Society Limited [2021] KEELRC 1330 (KLR)

Employment and Labour Relations Court
30 June 2021
DMD.K.Njagi Marete
1,138 words in judgment
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The bottom line

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A Kenyan court dismissed a union's claim for unpaid terminal benefits because the employer proved a lawful redundancy with all dues fully paid.

What this practically means

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Executive summary

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This first-instance claim was originated by a Memorandum of Claim dated 29th October 2020 in which the Claimant/Union complained of failure to pay terminal benefits to four grievants: Jackson Kanyi Wanjohi, James Wanjohi Kinyua, James Wachira Mwangi and Atanasio Macharia Gichine. The Claimant relied on a Recognition Agreement and a registered Collective Bargaining Agreement (1st October 2016 to 30th September 2018), asserting the grievants left employment between December 2017 and June 2018 and remain unpaid service gratuity. The Respondent sharply denied the claim, pleading that it fully settled all dues: amounts for periods up to 31st December 2008 were paid directly, while amounts from 1st January 2009 were remitted to the Co-op Trust Investment Retirement Scheme, with detailed cheque-by-cheque computations for each grievant. It also pleaded that the fourth grievant resigned voluntarily before expiry of a three-year contract under which no gratuity was payable, and that the grievants were lawfully declared redundant in compliance with Section 40 of the Employment Act with all dues paid. The court framed four issues: whether there was a termination of employment; whether any termination was wrongful, unfair or unlawful; entitlement to relief; and costs. Holding that a lawful redundancy was demonstrated and terminal dues fully settled, the court found no termination of employment at all, rendering the fairness question moot and disentitling the claimant from relief. The claim was dismissed with each party bearing its own costs. Judgment was delivered at Nyeri on 30th June 2021 by D.K.Njagi Marete, Judge.

Key legal issues

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01

Whether there was a termination of the employment of the grievants

Holding

There was no termination of employment; a lawful redundancy was demonstrated and terminal dues were settled.

Reasoning

The Respondent demonstrated that the grievants were declared redundant in compliance with Section 40 of the Employment Act and that their terminal dues, including gratuity both for the pre-2009 period paid directly and the post-2009 period remitted to the Co-op Trust Investment Retirement Scheme, were fully paid. The court accepted the respondent's submission that there was no balance of issues remaining.

p. 3
02

Whether the termination, if at all, was wrongful, unfair and unlawful

Holding

This issue does not arise because there was no termination of employment whatsoever.

Reasoning

Having found no termination of employment, the court held it had no business examining the legitimacy or fairness of a termination that never occurred. The question of wrongful, unfair or unlawful termination falls away with the finding on the first issue.

p. 3
03

Whether the claimant is entitled to the relief sought

Holding

The claimant is not entitled to the relief sought, having failed on the claim of unlawful termination.

Reasoning

Entitlement to relief was contingent on success on the claim of unlawful termination of employment. Since the court found no termination but a lawful redundancy with terminal dues fully settled, the claimant becomes disentitled to all relief sought in the memorandum of claim.

p. 3

Legal principles established

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  • Where the facts establish a lawful redundancy with terminal dues paid, no termination of employment arises and claims for unlawful termination fail

Court orders

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  1. 1.The claim is dismissed
  2. 2.Each party bears the costs of the claim

Authorities

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Legislation

  • Employment ActSection 40
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act, Section 40 raised on redundancy)

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, "Kenya Union of Commercial Food and Allied Workers v Gikanda Farmers Cooperative Society Limited [2021] KEELRC 1330 (KLR)", Case Analysis (2021). Memorandum of Claim dated 29th October, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1330/eng@2021-06-30

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