Githuku & another (Suing as the Legal Representative of the Estate of the Late Henry Mbugua) v Foton East Africa Ltd (Cause 316 of 2015) [2022] KEELRC 1306 (KLR)
The bottom line
#A Kenyan court awarded a driver's family Kshs. 449,946 after finding his employer's branch closure was a redundancy handled without following mandatory legal procedure.
What this practically means
#Executive summary
#Key legal issues
#Whether the termination was a redundancy
Termination arising from closure of the Nakuru branch was a redundancy
The court found from the letter of recommendation that the Claimant lost his job because the branch where he worked closed down. Since this was not an act of the Claimant and his services became superfluous at the employer's initiative, it fell squarely within the statutory definition of redundancy in section 2 of the Employment Act.
Whether the redundancy procedure under section 40 was complied with
The Respondent did not comply with section 40 and the termination was unfair
Section 40 requires notification of the employee personally in writing and the labour officer at least one month before redundancy, payment of leave, one month's notice or pay in lieu, and severance pay at not less than 15 days' pay per completed year. No evidence of such compliance was adduced, and the case proceeded uncontroverted after the Respondent failed to attend hearing.
Effect of the Respondent's non-participation
The claim remained uncontroverted and was established
The Respondent was served but did not attend the hearing, having earlier been granted leave to its advocates to cease acting. In the absence of any contrary evidence, the Claimant's evidence and submissions stood uncontroverted and the court accepted the pleaded underpayments and unpaid dues.
Legal principles established
#- Termination on account of closure of the branch where the employee worked is a redundancy under section 2 of the Employment Act
- An employer who fails to comply with section 40 of the Employment Act effects unfair termination
Court orders
#- 1.Payment of 1 month salary in lieu of notice of Kshs. 23,262.40
- 2.Payment of unpaid salary for June 2015 of Kshs. 23,262.40
- 3.Payment of salary underpayments as pleaded of Kshs. 90,692.40
- 4.Payment of house allowance not paid as pleaded of Kshs. 47,480.22
- 5.Payment of annual leave earned and not taken as pleaded of Kshs. 20,993.80
- 6.Payment of severance pay equivalent to 15 days for each year served, Kshs. 11,631.20
- 7.Compensation equivalent to 10 months' salary for unfair redundancy of Kshs. 232,624
- 8.Total award of Kshs. 449,946 less statutory deductions
- 9.Respondents to pay costs of the suit plus interest at court rates with effect from the date of judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act); judgment does not cite the specific provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githuku & another (Suing as the Legal Representative of the Estate of the Late Henry Mbugua) v Foton East Africa Ltd (Cause 316 of 2015) [2022] KEELRC 1306 (KLR)", Case Analysis (2022). Memorandum of Claim dated October 22, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1306/eng@2022-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.