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ELRCPartially AllowedCause (Memorandum of Claim dated 6th November 2017)· [2021] KEELRC 1527 (KLR)

Samuel Omari Tinega v Kenya Methodist University [2021] KEELRC 1527 (KLR)

Employment and Labour Relations Court
20 April 2021
3,089 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled Kenya Methodist University's redundancy was unfair because it skipped mandatory legal notices, awarding the employee millions in compensation.

What this practically means

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Executive summary

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The Claimant, formerly Senior Internal Auditor and later Deputy Chief Internal Auditor and acting Head of Internal Audit at Kenya Methodist University, sued for unfair termination of his employment on account of redundancy by letter dated 22nd May 2017. He alleged that the Vice Chancellor orchestrated his removal after audit friction, that new overlapping posts were created, that the redundancy lacked consultation, statutory notice to himself or the Ministry of Labour, and adherence to the selection criteria in section 40(1)(c) of the Employment Act. He sought reinstatement or alternatively twelve months' compensation and damages of about Kshs. 12.6 million. The Respondent admitted the termination on redundancy but asserted compliance with section 40 and a Council restructuring resolution of 15th May 2017. The Respondent did not appear at the virtual hearing and filed no submissions or evidence. The Court held that the employer bears the burden of proving compliance with the mandatory conditions precedent in section 40(1), and that no statutory notice to the employee and labour officer was issued; payment in lieu of notice could not cure that default. The termination was therefore both substantively and procedurally unfair. Reinstatement was refused as the three-year statutory cap had expired. The Court awarded unpaid leave of 156 days (Kshs. 910,520), severance pay at 15 days per completed year (Kshs. 787,950), twelve months' compensation (Kshs. 2,101,200), interest at court rates from the date of judgment, and costs of the suit.

Key legal issues

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01

Whether the redundancy complied with section 40(1) of the Employment Act

Holding

The termination was substantively and procedurally unfair because no notice was issued to the employee personally or to the labour officer as required, and no consultation occurred

Reasoning

The Court set out the applicable conditions in section 40(1)(b) to (g) for non-union employees. The Respondent did not appear or give evidence. The Claimant confirmed he was not a union member and that no genuine consultations were initiated with him or the Ministry of Labour. Failure to issue the statutory notice rendered the termination unfair, and payment in lieu of notice could not cure that default.

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02

Whether the Respondent proved a valid reason for the redundancy

Holding

The Respondent failed to justify the termination; without any documents it was difficult to determine whether there was a valid reason under section 43(2)

Reasoning

The Respondent did not give any evidence at the hearing. The decision to declare vacancies was made on 15th May 2017 and the termination letter issued a week later, suggesting a rushed process. Under section 43(2) the burden lay on the employer to prove the reason for termination, which was not discharged.

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03

Entitlement to unpaid leave, severance pay and compensation

Holding

The Claimant was entitled to unpaid leave under section 28, severance pay at 15 days per completed year under section 40(1)(g), and 12 months' compensation under section 49

Reasoning

The employer is bound by section 77 to keep employee records; having produced none to rebut the claims, the claim for unpaid leave payable under section 28 succeeded. Damages under section 49 flowed from the unfair termination. Reinstatement was refused as the three-year statutory cap had lapsed, per the Court of Appeal in Sotik Highlands Tea Estates.

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Legal principles established

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  • Compliance with the redundancy procedure in section 40 of the Employment Act is mandatory; failure to issue the statutory notice to the employee personally and to the labour officer renders the termination unfair
  • Payment of one month's salary in lieu of notice does not cure the employer's failure to issue the statutory 30-day notice of redundancy
  • Where the employer fails to adduce evidence or produce employment records, the burden of justifying a termination is not discharged

Court orders

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  1. 1.Payment of leave earned and not taken of 156 days – Kshs. 910,520/-
  2. 2.Severance pay at the rate of 15 days for each completed year of service – Kshs. 787,950/-
  3. 3.Compensation for unlawful termination through redundancy amounting to 12 months – Kshs. 2,101,200/-
  4. 4.Interest at court rates on the sums above from the date of judgment till payment in full
  5. 5.Costs of the suit to the Claimant

Authorities

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Legislation

  • Employment ActSection 40(1)(a)-(g)
  • Employment ActSection 45
  • Employment ActSection 43(2)
  • Employment ActSection 49
  • Employment ActSection 28
  • Employment ActSection 77
  • Employment and Labour Relations Court ActSection 12(3)(vii)

Cases cited (4)

  • Gerrishom Obayo v Dsv Air and Sea Ltd
    [2018] eKLR Cause No. 2104 of 2017
  • Barclays Bank of Kenya Ltd & Another v Gladys Muthoni & 20 Others
    [2018] eKLR Civil Appeal 296 & 301 of 2016 (Consolidated)
  • Thomas De La Rue (K) Ltd vs David Opondo Omutelema
    [2013] eKLR
  • Sotik Highlands Tea Estates Limited v Kenya Plantation and Agricultural Workers Union
    [2017] eKLR
Jurisdiction invoked
Employment and Labour Relations Court Act, section 12 (original jurisdiction over employment disputes)

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, "Samuel Omari Tinega v Kenya Methodist University [2021] KEELRC 1527 (KLR)", Case Analysis (2021). Cause (Memorandum of Claim dated 6th November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1527/eng@2021-04-20

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