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ELRCPartially AllowedCause No 80 of 2017· [2021] KEELRC 2245 (KLR)

Godfrey Juma Nyatigi v West Kenya Sugar Company Limited [2021] KEELRC 2245 (KLR)

Employment and Labour Relations Court
28 January 2021
1,779 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court awarded an employee three months' salary because his redundancy lacked proper notice and Labour Office notification, despite valid reasons.

What this practically means

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Executive summary

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The claimant, formerly a Production Supervisor and later Production Superintendent of the respondent, was terminated by letter dated 2/7/2008 citing 'services no longer required'. He sought reinstatement or, alternatively, compensation and various terminal benefits. The respondent admitted employing him (initially in 1995, declared redundant in 2000, re-employed 2001) and contended he was declared redundant and paid full benefits under Section 40 of the Employment Act, 2007, following a conciliation at the Kakamega Labour Office under which gross dues of about Kshs.119,532 were paid, netting Kshs.31,063.90 after deductions. The court found the claimant failed to discharge his burden under Section 47(5) to prove wrongful termination, and that the respondent had a valid reason for termination - redundancy due to diminished work - which the claimant tacitly admitted by accepting severance pay. However, the respondent failed to follow the Section 40 procedure: no one month's prior notice, no notification to the Labour Office, and reasons not clearly set out in the termination letter. The court awarded three months' salary (Kshs.93,191.70) for the unprocedural redundancy declaration and Kshs.20,000 travel allowance upon termination, totalling Kshs.113,191.70, with interest at court rates and costs. Claims for bonus and other terminal benefits were disallowed as proved or settled at the labour office. Judgment was delivered online pursuant to COVID-19 directives with the parties' consent.

Key legal issues

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01

Validity of the reason for termination

Holding

The respondent had a valid reason to terminate the claimant's employment as the work had diminished, amounting to redundancy

Reasoning

The claimant was first declared redundant in 2000, recalled in 2001, and again declared redundant on 2/7/2008 because his work had diminished. The words 'services no longer required' in the termination letter were explained as indicating the work was no longer available. Acceptance of severance pay for each completed year of service amounted to tacit admission of redundancy. No evidence showed termination for misconduct.

p. 3
02

Procedural fairness of the redundancy

Holding

Although the reason was valid, the respondent failed to follow the Section 40 procedure: no one month's notice, no notification to the Labour Office, and reasons not clearly set out in the letter

Reasoning

Section 40 of the Employment Act requires one month's prior notice of redundancy and notification of the Labour Officer. The termination letter of 2/7/2008 cited 'service no longer required' without mentioning redundancy or setting out reasons. These omissions rendered the declaration unprocedural, justifying compensation of three months' salary despite the valid substantive reason.

p. 3
03

Burden of proof on the claimant

Holding

The claimant failed to adduce sufficient evidence that the termination was wrongful under Section 47(5)

Reasoning

Under Section 47(5) of the Employment Act, the employee must demonstrate that the termination was wrongful. The claimant did not disclose the redundancy settlement details in the statement of claim and offered no sufficient proof of wrongfulness, while the respondent's evidence of payment under Section 40 was credible.

p. 2

Legal principles established

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  • An employee alleging wrongful termination bears the burden of proving it under Section 47(5) of the Employment Act, 2007
  • An employer may have a valid substantive reason for redundancy yet fail the fair-procedure requirements of Section 40, including one month's notice and notification to the Labour Office

Court orders

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  1. 1.Kshs.20,000 travelling allowance upon termination
  2. 2.Kshs.93,191.70 being 3 months' compensation for unprocedural termination
  3. 3.Total award of Kshs.113,191.70
  4. 4.Interest at court rates from date of judgment till payment in full
  5. 5.Costs of the suit

Authorities

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Legislation

  • Employment ActSection 40
  • Employment ActSection 47(5)
  • Civil Procedure RulesOrder 21 rule 1
  • Civil Procedure ActSection 18
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
Jurisdiction invoked
Original employment and labour relations 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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Cite this brief

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Cite this brief

Caselaw, "Godfrey Juma Nyatigi v West Kenya Sugar Company Limited [2021] KEELRC 2245 (KLR)", Case Analysis (2021). Cause No 80 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2245/eng@2021-01-28

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