Nancy Mbithe Mutisya v Coretec Systems & Solutions [2021] KEELRC 1555 (KLR)
The bottom line
#A Kenyan court ruled a redundancy unlawful because the employer skipped mandatory consultation steps, even though the job cuts themselves were genuinely necessary.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy was justified
Yes - the employer proved a genuine redundancy situation on a balance of probability
The Respondent explained that fast-paced evolution in the ICT industry rendered some products obsolete, halting projects and causing a slump in operations, forcing a commercial decision to reduce staff from 250. The Claimant tendered no evidence contesting the redundancy situation and did not deny that 95 of 250 employees were laid off. The position of Senior Office Assistant was abolished.
Whether the proper procedure under section 40 was followed
No - the mandatory procedure was not followed, rendering the termination unfair and unlawful
The Respondent served the first notice only on the Labour Office on 7.1.2019 and failed to serve the Claimant, so no consultation took place to avert the redundancy or mitigate its effects. The three months' termination notice served was what ought to have been the second notice after consultations and selection under section 40(1)(c). FILO did not apply as the Claimant was the only Senior Office Assistant.
Reliefs
Statutory compensation awarded; constitutional, quashing and reinstatement reliefs declined
Having found unfair termination, the court awarded three months' salary in lieu of notice plus 12 months' compensation under section 49(1), considering 15 years of service and dismissal without fault. Reinstatement was impracticable as the position was abolished, and section 49(4)(d) bars specific performance except in exceptional circumstances. Constitutional claims were declined since the dispute was purely statutory.
Legal principles established
#- The burden is on the employer to prove a genuine redundancy situation and that the position had become superfluous.
- Section 40(1) of the Employment Act prescribes a mandatory procedure; failure to serve notice on the employee and consult renders the redundancy unfair and unlawful under section 45.
- A redundancy claim is a statutory claim and does not require constitutional interpretation; a claimant should file a normal Memorandum of Claim.
Court orders
#- 1.Declaration that the Claimant's redundancy vide the letter dated 6.12.2019 was unlawful and unfair
- 2.Award of three months gross salary in lieu of notice
- 3.Award of 12 months gross salary as compensation for unlawful and unfair termination
- 4.Award of salary for 3 months from 9.12.2019 to 9.3.2020
- 5.Costs and interest at court rates from the date of the judgment
- 6.Direction that the Respondent pay the awards within 30 days
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution (ELRC jurisdiction over employment and labour relations), the petition being a first-instance employment claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nancy Mbithe Mutisya v Coretec Systems & Solutions [2021] KEELRC 1555 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1555/eng@2021-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.