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ELRCPartially AllowedCause No 1206 of 2017· [2022] KEELRC 1608 (KLR)

Chege v Bata Shoe Company, Kenya Limited (Cause 1206 of 2017) [2022] KEELRC 1608 (KLR)

Employment and Labour Relations Court
25 July 2022
JGJACOB GAKERI
5,395 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled Bata unlawfully terminated an employee through a flawed redundancy, awarding him over Kshs. 714,000 plus costs and interest.

What this practically means

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Executive summary

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The claimant, initially engaged by the respondent in February 1993 as a delivery/wages/office clerk and confirmed in 1998 as a booking clerk, was transferred to Bata Shoe Tanzania in 2015 and recalled to Kenya in February 2017. On his return he received a 30-day notice of intended redundancy dated March 15, 2017, but the respondent neither communicated with him during nor after the notice period, and purported to redeploy him to the Production Department only on April 24, 2017, after the notice had expired. The claimant reported the dispute to the Labour Office, and the respondent alleged he absconded duty. The court found employment commenced on February 20, 1993, contrary to the respondent's assertion of a 1998 engagement. On the central issue, the court held that the absence of communication for almost 40 days after the redundancy notice, together with total non-compliance with the mandatory conditions of section 40(1) of the Employment Act, amounted to constructive dismissal on account of redundancy disguised as such. The defence of desertion failed because the respondent proved neither service of the recall letters nor efforts to contact the claimant through his mobile phone. Severance pay was refused because it is payable only where section 40 is complied with, and general damages failed for want of evidence. The court awarded the claimant 15 days' salary for April 2017 (Kshs.42,000/=), two months' salary in lieu of notice (Kshs.168,000/=), and the equivalent of eight months' salary as compensation under section 49(1)(c) (Kshs.504,000/=), with costs and interest from the date of judgment.

Key legal issues

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01

Date of employment

Holding

The Claimant was employed on February 20, 1993, as supported by uncontradicted evidence and the NSSF statement

Reasoning

The claimant testified he was first engaged in 1993 on contractual terms before the 1998 written contract. The Respondent did not contradict this, and its own witness confirmed 1993 employment on cross-examination, supported by the NSSF statement on record.

p. 7
02

Whether employment was terminated on account of redundancy or the claimant absconded

Holding

The employment was unlawfully terminated disguised as redundancy; absconding was not proved

Reasoning

The Respondent gave a 30-day redundancy notice but neither communicated with the claimant during or after the notice period, withdrew the notice only after it had run its course, and complied with none of the mandatory conditions of section 40(1) of the Employment Act. It also failed to prove service of the recall letters or efforts to contact the claimant, so desertion was not established.

p. 10
03

Entitlement to reliefs

Holding

Claimant awarded 15 days' April 2017 salary, two months' salary in lieu of notice, and 8 months' salary compensation; severance and general damages declined

Reasoning

The court invoked section 49(1)(c) of the Employment Act for compensation, considering 19 years of service, absence of misconduct record, and lack of appeal against redundancy notice. Severance was refused because section 40 compliance is a precondition, and general damages for unfair termination failed for want of proof.

p. 11

Legal principles established

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  • An employer claiming desertion must prove efforts to get the employee back and issue notice of contemplated termination
  • Employer bears heavy burden to justify termination
  • All conditions in section 40(1) of the Employment Act must be complied with for a valid redundancy

Court orders

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  1. 1.Salary for 15 days worked in April 2017, Kshs.42,000/=
  2. 2.Two months salary in lieu of notice Kshs.168,000/=
  3. 3.Equivalent of 8 months salary compensation Kshs.504,000/=
  4. 4.Costs of this suit
  5. 5.Interest at court rates from the date of Judgment till payment in full

Authorities

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Legislation

  • Employment Actsection 2, section 40, section 40(1), section 40(1)(g), section 9(2), section 49(1)(c)
  • Evidence Actsection 107, section 108
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d), Article 48

Cases cited (18)

  • Thomas De La Rue (K) Ltd V. David Opondo Omutelema
    (2013) eKLR
  • H. Young and Co. EA Ltd V. Javan Were Mbango
    (2016) eKLR
  • Charles Kambo Wamai V. Bamburi Cement Ltd
    (2013) eKLR
  • Muthuuri v. National Industrial Credit Ltd
    (2003) eKLR
  • National Bank of Kenya Ltd v. Pipeplastic Samkolit (K) Ltd and another
    (2000) EA 503
  • Paulo Chacha Isack V. Manpower Guard Services and another
    (2020) eKLR
  • Edwin Beiti Kipchumba V. National Bank of Kenya Ltd
    (2018) eKLR
  • Douglas Omunyin Otungu V. Board of Trustees Redeem Christian Church of God
    (2022) eKLR
  • John Nanbokule Omukuba V. N. Mesh P. Sha Brimji
    (2008) eKLR
  • Bohham – Carter v. Hyde Park Hotel Ltd
    (1948) TLR 177 at 178
  • John Njenga V. Bata Shoe Company Ltd
    (2001) eKLR
  • Freight In time Ltd v Rosebell Wambui Munene
    (2018) eKLR
  • Barclays Bank of Kenya Ltd and another v. Gladys Muthoni and 20 others
    (2018) eKLR
  • Kenya Plantation and Agricultural Workers Union V. Harvest Limited
    Case No. 77 of 2014
  • Seabolo V Belgravia Hotel
    (1997) 6 BLLR 829 (CCMA)
  • Felistas Acheha Ikatwa v. Charles Peter Otieno
    (2018) eKLR
  • Simon Mbithi Mbane V. Inter Security Services Ltd
    (2018) eKLR
  • Nzioka V. Smart Coatings Ltd
    (2017) eKLR
Jurisdiction invoked
First-instance employment and labour relations claim under the Employment Act, 2007 (ELRC jurisdiction)

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, "Chege v Bata Shoe Company, Kenya Limited (Cause 1206 of 2017) [2022] KEELRC 1608 (KLR)", Case Analysis (2022). Cause No 1206 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1608/eng@2022-07-25

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