John Mukosi Kioki & 3 others v Primi Piatti Limited & another [2022] KEELRC 671 (KLR)

The Respondents adduced neither documentary nor oral evidence. Although the defence asserted the Claimants were informed of the redundancy, no evidence supported this. The only reference to redundancy was Kshs.6,000/- designated as such on payslips. Without any evidence of restructuring necessitating redundancy, of notices to employees or the labour officer, or of consultation, the Respondent failed to discharge the heavy burden placed on an employer to justify termination.

The Respondent relied exclusively on the dissenting judgment in Kenya Airways Ltd v Aviation & Allied Workers Union to argue that Kenyan law does not require consultations before redundancy. The Court held that the majority judgment held otherwise, and this was reinforced by the Court of Appeal in Barclays Bank, which grounded the requirement in Article 41 of the Constitution and fair labour practices. The Court is bound by these pronouncements.

The 4th Claimant gave three inconsistent dates of termination (October 2015, 2nd February 2016 and 5th February 2016), admitted on cross-examination that he had given false testimony, and only filed the September 2015 payslip. Under Section 47(5) of the Employment Act the burden of proving unfair termination rests on the employee. Given the contradictions and admission, the Court found it unsafe to rely on his evidence and dismissed his claim.

The Regulation of Wages Orders 2013 and 2015 established the salaries were below the prescribed minimum with no house allowance, but no Order was produced for the period before May 2013. For compensation, the Court considered that the Claimants did not contribute to the termination, had served about five and three years respectively, and the Respondents tendered no evidence. Severance pay under Section 40(1)(g) was declined as the redundancy was unfair and the Claimants were NSSF members.