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ELRCDismissedELRC Cause (statement of claim dated August 8, 2016, filed August 12, 2016)· [2022] KEELRC 1571 (KLR)

Ileli v Telkom Kenya Limited (Cause 1617 of 2016) [2022] KEELRC 1571 (KLR)

Employment and Labour Relations Court
7 June 2022
5,684 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a Safaricom employee's claims, holding his redundancy was lawful and lump-sum redundancy payments are subject to PAYE tax deductions.

What this practically means

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Executive summary

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The claimant, employed by the respondent in 1988 and serving as a financial representative in North Eastern Kenya, was declared redundant on April 30, 2016 following a company restructuring. He sued seeking damages for wrongful redundancy, compensation for injuries sustained in two grenade attacks in Wajir (December 24, 2011 and December 1, 2014), a refund of Kshs 618,131.64 allegedly illegally deducted, salary until retirement, and costs. He alleged the redundancy was targeted at him on account of a 45% disability and that a union-agreed tax waiver created a legitimate expectation of higher payment. The respondent maintained the redundancy was lawful, court-supervised in ELRC Cause No 2287 of 2015, that the deduction was lawful PAYE, that all financial representatives were declared redundant, and that the claimant received prompt medical care and Kshs 121,517 from AIG Insurance. The court framed two issues: the legality of the redundancy and entitlement to reliefs. It found the redundancy lawful, noting compliance with section 40 of the Employment Act, union consultations confirmed by Wasilwa, J in Cause No 2287 of 2015 (against which no appeal was preferred), and that the claimant led no evidence of targeting. The injury claim failed for want of particulars and medical evidence, and the deduction claim failed because the sum was lawful PAYE and an employer cannot waive tax, any such agreement being illegal and ineffectual. The salary-till-retirement claim also failed. The entire suit was dismissed on June 7, 2022, with no order as to costs.

Key legal issues

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01

Whether the redundancy was unlawful or discriminatory (targeted on account of injuries)

Holding

The redundancy was lawful; the claimant failed to prove he was targeted on account of his injuries

Reasoning

The restructuring affected all financial representatives; the union negotiated on the claimant's behalf; the court in ELRC Cause No 2287 of 2015 found consultations occurred and section 40 of the Employment Act was complied with, and no appeal was preferred against that finding. The redundancy letter made no reference to incapacity, the claimant never complained to the employer about alleged incapacity, and a 14-month delay between injury and redundancy undermined the targeting claim.

p. 8
02

Whether the claimant was entitled to compensation for injuries sustained in the two grenade attacks

Holding

Claim refused for failure to plead and prove the injuries

Reasoning

The claimant did not particularise the injuries, led no medical evidence of their nature, severity or recovery, and admitted receiving medical care at the respondent's cost and Kshs 121,517 from AIG Insurance. Reliance placed on the pleadings principle in Antony Francis Wareham and the requirement of credible medical evidence to assess damages.

p. 10
03

Whether the deduction of Kshs 618,131.64 was illegal and refundable

Holding

Not refundable; it was lawful PAYE and the tax waiver agreement was ineffectual

Reasoning

Under sections 3(1), 5(2) and 37 of the Income Tax Act, the employer was obliged to deduct and remit tax on the lump-sum redundancy payment. The claimant gave no details of the alleged tax waiver, and in any event an employer cannot waive taxes due; an agreement not to deduct tax to enable evasion is illegal at common law.

p. 12
04

Whether salary till retirement was payable

Holding

Claim dismissed as the lawful redundancy validly ended the contract

Reasoning

Redundancy is a legitimate mode of terminating employment. The claimant was paid Kshs 2,060,438.81, more than the salary he would have earned over his remaining two years to retirement, and no evidence of pension loss was furnished.

p. 12

Legal principles established

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  • An employer has no legal capacity to waive payment of taxes by an employee; an agreement not to deduct PAYE to enable an employee evade tax is illegal and ineffectual
  • Lump-sum terminal dues on redundancy are subject to statutory deductions (PAYE) under sections 3, 5(2) and 37 of the Income Tax Act
  • Where an employee is a member of a trade union, the employer deals with the employee through the union in a redundancy process
  • Only evidence of facts pleaded is admissible, and a court cannot grant relief not sought or founded on unpleaded matters

Court orders

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  1. 1.The claimant's claim is dismissed in its entirety
  2. 2.No order as to costs

Authorities

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Legislation

  • Employment Actsection 2 (definition of redundancy)
  • Employment Actsection 40
  • Employment Actsection 45
  • Employment Act, 2007section 40
  • Income Tax Actsection 37(1)
  • Income Tax Actsection 3(1) and (2)(a)
  • Income Tax Actsection 5(2)
  • Civil Procedure Rulesorder 21 rule 1
  • Civil Procedure Actsection 1B
  • Constitution of Kenyaarticle 159(2)(d)
  • Constitution of Kenyaarticle 48

Cases cited (13)

  • ELRC Cause No 2287 of 2015
  • Mwangi Macharia & another v Peter Mwangi Mugo Nairobi HCCC No 4641 of 1987
  • Law Society of Kenya v Attorney General and another [2019] eKLR
  • Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank [2004] eKLR
  • Andrew Mukite Saisi v Tracker Group of Companies Limited [2020] eKLR
  • Freight In Time Limited v Rosebell Wambui Munene [2018] eKLR
  • Thomas De La Rue (K) Ltd v David Opondo Omutelema [2013] eKLR
  • Kenya Airways Limited v Aviation and Allied Workers Union Kenya & 3 others [2014] eKLR
  • Meru South Farmers' Co-operative Union Limited v Moses Otando Munaka & another [2015] eKLR
  • George Kebaso Mabbeya v Crown Industries Limited [2012] eKLR
  • Kioko Joseph v Bamburi Cement Limited [2015] eKLR
  • Directline Assurance Co Ltd v Jeremiah Wachira Ichaura [2016] eKLR
  • Nairobi City Council v Thapili Enterprises Ltd
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance statement of claim)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ileli v Telkom Kenya Limited (Cause 1617 of 2016) [2022] KEELRC 1571 (KLR)", Case Analysis (2022). ELRC Cause (statement of claim dated August 8, 2016, filed August 12, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1571/eng@2022-06-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.