Wilson Waweru Ndungu v Ingredion Holding Llc – Kenya Branch [2021] KEELRC 1783 (KLR)
The bottom line
#A Kenyan court ruled an employer's redundancy unlawful because it failed to give one month's notice to both the employee and the Labour Officer.
What this practically means
#Executive summary
#Key legal issues
#Validity of the redundancy notice to the employee and the Labour Officer
The redundancy was unlawful for want of valid notice; the employee's notice of 2nd June 2020 was not matched by a notice to the Labour Officer until 7th July 2020, after the termination.
Section 40(1)(a) and (b) of the Employment Act require notification of both the employee and the Labour Officer at least one month before redundancy. The February 2020 notice to the Labour Officer covered only the earlier redundancy from which the Petitioner was not affected, and the Respondent admitted this by issuing a fresh notice on 7th July 2020 while the suit was pending. The Petitioner was thus terminated before the Labour Officer's notice was issued.
Alleged discrimination and malice in selection for redundancy
No malice or discrimination was established; the redundancy flowed from a genuine business restructuring, not from the Petitioner's failure to work during the COVID-19 lockdown.
The Respondent showed the supply chain coordinator position was abolished following a review that made outsourcing to its warehousing partner more cost effective. The court found the correspondence about the lockdown and movement passes insufficient to prove the Petitioner was targeted for his inability to report to work.
Alleged constitutional violations (Articles 10, 19, 20, 21, 27, 28, 41, 47, 165, 260)
No constitutional violation was proved; the claim was adequately dealt with under the Employment Act.
The court found no proof of discrimination under Article 27, no evidence on Articles 28, 41 or 47, and no demonstration of the relevance of Articles 165(3) and (6) or 260. The Petitioner thus failed on the constitutional heads of his petition.
Breach of legitimate expectation
The Respondent breached the Petitioner's legitimate expectation created by the letter of 20th February 2020 assuring him he was no longer at risk of redundancy, only to declare him redundant two months later.
The letter of 20th February 2020 and the notice to the Labour Officer of 3rd February 2020 assured the Petitioner of continued employment in the new structure after his successful interview and salary increase. The abrupt second redundancy without prior notification defeated that assurance.
Legal principles established
#- For a valid redundancy notice under Section 40(1) of the Employment Act, both the employee personally and the Labour Officer must be notified at least one month before the redundancy; notice to one without the other is not valid notice.
- Non-compliance with the statutory redundancy procedure in Section 40(1) of the Employment Act renders the redundancy unlawful and the termination unfair under Section 45 of the Employment Act.
- An assurance by an employer that an employee is no longer at risk of redundancy gives rise to a legitimate expectation which the employer breaches if it thereafter declares the same employee redundant.
Court orders
#- 1.Declaration that the redundancy was unlawful and amounted to unfair termination
- 2.Declaration that the Respondent violated the Petitioner's legitimate expectation
- 3.Award of compensatory damages equivalent to 5 months' salary in the sum of Kshs.1,073,095/= to the Petitioner
- 4.The Respondent to adjust the tabulation of the Petitioner's severance pay to the rate of one month's pay for each year of service and pay him the difference
- 5.The Respondent to pay the Petitioner's costs of the suit with interest on the decretal sum accruing from the date of judgment
- Jurisdiction invoked
- Article 165(3)(b) of the Constitution of Kenya 2010; Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilson Waweru Ndungu v Ingredion Holding Llc – Kenya Branch [2021] KEELRC 1783 (KLR)", Case Analysis (2021). Petition (not specified on face of judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1783/eng@2021-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.