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ELRCPartially AllowedNot stated on face of judgment (Memorandum of Claim dated 18th January 2017)· [2021] KEELRC 1751 (KLR)

Francis Murimi Kigoro v Ready Consultancy Limited [2021] KEELRC 1751 (KLR)

Employment and Labour Relations Court
13 May 2021
LNLINNET NDOLO
1,214 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a security guard's redundancy unfair because his employer skipped mandatory legal steps, awarding him over Kshs. 254,000.

What this practically means

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Executive summary

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The Claimant, employed by the Respondent as a security guard from September 2009 at a monthly salary of Kshs. 20,020, was issued with a letter dated 10th October 2016 terminating his employment on account of redundancy. The Respondent contended that the redundancy letter was issued erroneously and recalled the same day, offering the Claimant a transfer to Kisumu on unchanged terms, which he allegedly refused; the Claimant denied receiving the transfer and subsequent show cause letters. The Court found that the Respondent called no evidence to substantiate the alleged refusal of the transfer letter or the show cause letter, rendering those allegations unverified and unproved. The redundancy letter therefore stood as the only solid evidence of the mode of termination. Applying Section 40(1) of the Employment Act, which sets conditions on redundancy notices, objective selection criteria and payment of statutory dues, the Court held that the Respondent's total failure to observe these conditions amounted to unfair termination. On remedies, the Court awarded eight months' salary in compensation, one month's salary in lieu of notice, leave pay for one year, and severance pay computed for six years, totalling Kshs. 254,254, with interest at court rates from the date of judgment until payment in full. The Claimant was also granted a certificate of service and costs of the case. Judgment was delivered at Mombasa on 13th May 2021 via Microsoft Teams owing to COVID-19 restrictions.

Key legal issues

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01

Whether the termination of the Claimant's employment was unlawful

Holding

Yes. The employment ended on account of redundancy per the letter of 10th October 2016, and the Respondent failed to observe the Section 40(1) conditions, amounting to unfair termination.

Reasoning

The Respondent alleged the redundancy letter was recalled and the Claimant refused a transfer to Kisumu, but called no witness to prove delivery of the transfer or show cause letters. The handwritten notations were unsupported. The only solid evidence was the redundancy letter. Section 40(1) sets stringent conditions (notices, objective selection criteria, payment of statutory dues) which the Respondent made no attempt to observe, so termination was unfair.

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02

What remedies is the Claimant entitled to

Holding

Eight months' salary in compensation, one month's salary in lieu of notice, leave pay for one year, severance pay for six years, a certificate of service and costs.

Reasoning

Compensation was assessed at eight months taking into account length of service (2009–2016) and the Respondent's breach of the law. Notice pay was due. In the absence of contrary leave records, leave pay succeeded. Having been declared redundant, severance pay at 15 days per year for six years was due.

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Legal principles established

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  • Failure by an employer to observe the conditions in Section 40(1) of the Employment Act when declaring a redundancy amounts to unfair termination of employment
  • Serious allegations against an employee must be supported by evidence; uncorroborated allegations are unverified and unproved

Court orders

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  1. 1.Judgment entered in favour of the Claimant for Kshs. 254,254 comprising 8 months' salary in compensation (Kshs. 160,160), 1 month's salary in lieu of notice (Kshs. 20,020), leave pay for 1 year (Kshs. 14,014) and severance pay for 6 years (Kshs. 60,060)
  2. 2.The award to attract interest at court rates from the date of judgment until payment in full
  3. 3.The Claimant to be issued with a certificate of service
  4. 4.The Claimant awarded costs of the case

Authorities

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Legislation

  • Employment ActSection 40 (including 40(1))
  • Employment ActSection 2 (definition of redundancy)
  • Labour Relations Actcorresponding section defining redundancy

Cases cited (2)

  • Jane I Khalechi v Oxford University Press E.A. Ltd
    [2013] eKLR
  • Fatma Ali Dabaso v First Community Bank Limited
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (unfair termination claim)

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, "Francis Murimi Kigoro v Ready Consultancy Limited [2021] KEELRC 1751 (KLR)", Case Analysis (2021). Not stated on face of judgment (Memorandum of Claim dated 18th January 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1751/eng@2021-05-13

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