Nyabuto v Radar Limited (Cause 1738 of 2017) [2022] KEELRC 1445 (KLR)
The bottom line
#A Kenyan court ruled an employer's redundancy unlawful because it lacked proof of low business and ignored mandatory procedures, awarding the worker over Kshs 150,000.
What this practically means
#Executive summary
#Key legal issues
#Justifiable reason for redundancy
The respondent failed to prove that business was low and therefore had no justifiable reason to declare the claimant redundant.
Under sections 43(1), 45(2) and 47(5) of the Employment Act the burden lies on the employer to prove a valid and fair reason based on operational requirements. The respondent produced no evidence beyond RW1's testimony to substantiate its assertion of low business, and thus did not discharge that burden.
Procedural compliance with section 40(1) of the Employment Act
The respondent failed to prove compliance with the mandatory procedural requirements of section 40(1), rendering the termination unfair and unlawful.
There was no written redundancy notice on record and the global payment of Kshs 38,376.00 was not itemized, so compliance with section 40(1)(b) and (f) could not be established. No selection criteria was produced; RW1 admitted none was applied, breaching section 40(1)(c). Severance pay could not be verified from the unitemized global sum.
Entitlement to reliefs
Compensatory damages of four months' gross salary, one month's notice pay, severance pay for three years and salary for days worked in November 2016 were awarded; leave pay was denied and the admitted sum of Kshs 38,376.00 was deducted.
Having found the termination unfair and unlawful, the court assessed compensatory damages considering the length of employment, awarded notice pay and salary for days worked since there was no proof of payment, computed severance at fifteen days' pay per completed year for three years, and offset the admitted payment.
Legal principles established
#- For a termination on redundancy to be lawful it must be both substantively justified and procedurally fair, with the burden of proof on the employer.
- The conditions in section 40(1) of the Employment Act are mandatory and cannot be selectively applied by an employer.
Court orders
#- 1.A declaration that the claimant's termination was unfair and unlawful.
- 2.Compensatory damages of Kshs 104,416.00 equivalent to four months' gross salary.
- 3.One month's salary in lieu of notice of Kshs 26,104.00.
- 4.Severance pay of Kshs 39,156.00 for 3 years.
- 5.Kshs 9,142.93 being salary for the days worked in November 2016.
- 6.Total award of Kshs 188,818.93 less Kshs 38,376.00, hence final award of Kshs 150,442.93.
- 7.Interest on the final award at court rates from the date of judgment till payment in full.
- 8.The respondent shall bear the costs of the suit.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyabuto v Radar Limited (Cause 1738 of 2017) [2022] KEELRC 1445 (KLR)", Case Analysis (2022). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1445/eng@2022-08-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.