Joseph Ayora Omwena v Multiscope Consulting Engineering Limited [2021] KEELRC 2251 (KLR)
The bottom line
#A Kenyan court ruled an engineer's redundancy unfair because his employer skipped mandatory notice and severance steps, awarding him nearly Kshs. 3 million.
What this practically means
#Executive summary
#Key legal issues
#Nature of the termination
The termination letter declared the Claimant redundant as his services were no longer required
The court examined the termination letter dated 26/10/2015 which stated the client could not sustain the Claimant's caliber of staff on site. The judge construed this as a declaration of redundancy, which defeated the Respondent's desertion narrative since the Respondent itself characterized the exit as redundancy in the letter.
Compliance with Section 40 Employment Act
The redundancy was unfair and unjustified because the statutory conditions were not met
Section 40 prescribes mandatory conditions including notification of the employee personally in writing and the labour officer, payment of leave, one month's notice or wages in lieu, and severance pay at not less than fifteen days' pay per completed year. The court found no indication the Claimant was given notice or paid all outstanding dues, rendering the redundancy unfair.
Entitlement to compensation and terminal dues
Claimant awarded 10 months' salary compensation, refund of medical cover deduction, unpaid salary and out-of-pocket allowance
Having found unfair redundancy, the court exercised its discretion to award compensation for unfair redundancy and terminal dues, fixing compensation at 10 months' salary rather than the 12 months sought, and awarding the medical cover refund and unpaid salary for May to mid-August 2015.
Legal principles established
#- An employer must comply with the conditions in Section 40 of the Employment Act before terminating on account of redundancy; failure to give notice and pay dues renders the redundancy unfair
- Where an employee is terminated by redundancy, a claim of desertion cannot sustain
Court orders
#- 1.Payment of Kshs.161,734 deducted on account of medical cover
- 2.Payment of 10 months' salary as compensation for unfair redundancy (Kshs. 1,900,000)
- 3.Payment of unpaid salary for May, June, July and 15 days of August 2015 (Kshs. 655,000)
- 4.Payment of unpaid out of pocket allowance for 75 days at Kshs. 3,500 per day (Kshs. 262,500), total Kshs. 2,979,234 less statutory deductions
- 5.Respondent to pay costs of the suit plus interest at court rates from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (unfair termination and terminal dues claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Ayora Omwena v Multiscope Consulting Engineering Limited [2021] KEELRC 2251 (KLR)", Case Analysis (2021). Cause No. 498 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2251/eng@2021-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.