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ELRCDismissedMemorandum of Claim dated 13th February 2018 (Mombasa ELRC)· [2021] KEELRC 2168 (KLR)

Hassan Kibwana Said v A To Z Transporters Limited [2021] KEELRC 2168 (KLR)

Employment and Labour Relations Court
11 February 2021
LNLinnet Ndolo
1,373 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 upheld a transport company's redundancy because the employer gave proper notice and paid all statutory dues, dismissing the worker's entire claim.

What this practically means

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Executive summary

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Hassan Kibwana Said claimed against his former employer, A To Z Transporters Limited, for unlawful termination of his employment as a Diesel Service Worker on 17th December 2016, seeking one month's salary in lieu of notice, service pay, and twelve months' salary in compensation, less the Kshs. 17,337 already paid, together with a certificate of service, costs and interest. The Respondent admitted the employment but maintained that the termination was a lawful redundancy in full compliance with Section 40 of the Employment Act, 2007: the Claimant's Union and the Mombasa County Labour Office were notified more than a month in advance, the Claimant was personally notified, reasons and extent of the redundancy were given, and statutory dues including notice pay, leave pay and severance pay were paid. The Respondent also sought a stay of proceedings pending determination of a related cause filed by the Claimant's Union, ELRC Cause No. 336 of 2017. The court framed two issues: whether unlawful termination was established and whether the remedies sought were due. It found that the redundancy notice was issued to the labour office and the union on 18th November 2016, that the Claimant was paid one month's salary in lieu of notice plus other statutory dues, and that no fault attached to the declaration and execution of the redundancy. The service pay claim failed for lack of basis, and unpleaded claims for leave pay, public holidays and overtime raised in submissions were disregarded. The entire claim was disallowed with each party bearing their own costs.

Key legal issues

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01

Whether the termination on account of redundancy was lawful

Holding

Termination was lawful; the Respondent complied with Section 40 of the Employment Act

Reasoning

It was common cause that the employment ended on account of redundancy. The Respondent issued a redundancy notice to the County Labour Office, Mombasa and to the Claimant's Union on 18th November 2016, setting out reasons and extent of the redundancy, more than a month before the termination. The Claimant was also paid one month's salary in lieu of notice and other statutory dues. The court therefore found no fault in the declaration and execution of the redundancy.

p. 3
02

Whether the Claimant was entitled to the remedies sought

Holding

No remedies were due; the entire claim was disallowed

Reasoning

Having found the redundancy lawful, the claims for notice pay and compensation failed. The service pay claim had no established basis. Claims for leave pay, public holidays and overtime were disregarded as unpleaded and unsubstantiated, having been raised only in final submissions. The Claimant was already paid statutory dues of Kshs. 17,337.

p. 3

Legal principles established

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  • Section 40 of the Employment Act sets out mandatory conditions for a valid redundancy, condensable into three broad categories

Court orders

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  1. 1.The Claimant's entire claim is disallowed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Employment Act, 2007Section 2
  • Employment Act, 2007Section 40
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hassan Kibwana Said v A To Z Transporters Limited [2021] KEELRC 2168 (KLR)", Case Analysis (2021). Memorandum of Claim dated 13th February 2018 (Mombasa ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2168/eng@2021-02-11

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