Kilavu v Karta Singh Drupar and Company Limited (Cause 1234 of 2016) [2022] KEELRC 1438 (KLR)
The bottom line
#A Kenyan employer that skips the seven mandatory redundancy steps in section 40 of the Employment Act must compensate the worker, even with weak evidence.
What this practically means
#Executive summary
#Key legal issues
#Date of commencement of employment
The claimant was employed in 2008, not 2003 as he alleged nor 2010 as the respondent initially claimed
The claimant had no documentary evidence supporting 2003, could not state his monthly pay, but CW2 confirmed he was already an employee when he joined in 2008. The respondent failed to produce payroll records before 2009 despite the statutory duty to keep employment records, so the claimant's case of employment before 2010 was credited on a balance of probabilities.
Whether termination by notice dated February 4, 2016 was an unfair redundancy
The termination on account of redundancy was unfair for non-compliance with the substantive and procedural requirements of sections 40 and 45 of the Employment Act
The termination letter was in substance a redundancy notice but was not copied to any office, did not explain the extent of the redundancy, and the respondent led no evidence of restructuring, declining work, selection criteria or compliance with any of the seven conditions in section 40(1). The employer therefore failed to discharge its burden under sections 45(2) and 47(5).
Entitlement to unpaid leave
The prayer for unpaid leave for 13 years failed for lack of proof
The claimant gave no particulars of pending leave days or the years involved, and uncontested petty cash vouchers showed leave payments in 2010, 2011, 2013, 2014 and 2015. It was not plausible he never took leave for thirteen years.
Entitlement to service pay
Service pay is not payable to employees who are members of the NSSF
It was not disputed the claimant was an NSSF member with contributions made from November 2009 until termination. Section 35(5)/(6) of the Employment Act excludes NSSF members from service pay, so the prayer was declined.
Legal principles established
#- It is the employer's statutory duty to maintain records of its employees including remuneration and date of employment
- Section 40(1) of the Employment Act is mandatory and redundancy must comply with all seven conditions to pass muster
- An employer bears the burden of proving valid and fair reason and fair procedure under section 45(2) and section 47(5) of the Employment Act
Court orders
#- 1.Equivalent of two months' salary compensation
- 2.Certificate of service for the duration
- 3.Parties to bear own costs
- Jurisdiction invoked
- Original employment and labour relations jurisdiction of the Employment and Labour Relations Court (Employment Act, 2007)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kilavu v Karta Singh Drupar and Company Limited (Cause 1234 of 2016) [2022] KEELRC 1438 (KLR)", Case Analysis (2022). Cause No 1234 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1438/eng@2022-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.