Koech v Bundotich & another (T/A M/S Kale Maina & Bundotich Advocates) (Cause 640 of 2017) [2022] KEELRC 1621 (KLR)
The bottom line
#A Kenyan court ruled a lawyer's redundancy unfair because her employer skipped mandatory steps, but several claims failed due to missing paperwork and evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy was procedurally fair under section 40(1) of the Employment Act
The redundancy was unfair and ineffectual; no notice was given to the Labour Officer, no consultations, no selection criteria, and notice was issued as a fait accompli
The court found that the letter of July 13, 2016 abolished the claimant's position while she was still in office and unaware of the decision, with no notice of intention to declare her redundant. RWI confirmed no copy was served on the local Labour Officer as required by section 40(1). Other section 40 conditions — consultation, leave pay in cash, selection criteria, notice and severance — were also not met. Citing Freight In Time, failure to notify the Labour Officer renders a redundancy unlawful, so the notice was ineffectual and the termination unfair under section 45.
Whether the claimant was discriminated against on account of pregnancy
No discrimination established; the termination was not based on pregnancy
The claimant led no cogent evidence of discriminatory treatment after her verbal notice. She gave birth on June 23, 2016, meaning she was pregnant through most of late 2015 and the first half of 2016, yet her employment was not terminated for almost the entire duration of the pregnancy. The court noted the firm had many female employees who took maternity leave. The court found the pregnancy-based discrimination claim unproven, though the termination while on maternity leave was an undisputed aggravating fact.
Whether the claimant was entitled to maternity leave pay
Claim disallowed for want of the written notice required by section 29
Section 29(4) and (5) condition maternity leave rights on written notice of not less than seven days. The claimant gave only a verbal notice, did not identify to whom, how and when it was given, and did not inform the respondents after delivery that she had commenced maternity leave. The court held that the words 'shall only' mean the rights are triggered if and only if written notice is given, so the claimant did not trigger her right to maternity leave with full pay.
Whether the claimant's salary was all-inclusive of house allowance
Entitled to housing allowance at 15% of basic pay; the employer failed to prove consolidation
The respondent produced neither a written contract nor payslips to show the salary was consolidated, contrary to section 20 of the Employment Act requiring written pay statements. RWI confirmed no appointment letter or payslips were issued. On a balance of probability, the respondent failed to establish consolidation, and applying the Court of Appeal's reasoning in Grain Pro Kenya, housing allowance is awarded at 15% of basic salary effective July 14, 2014.
Whether the claimant was entitled to compensation for unfair termination
Awarded the equivalent of 3 months' gross salary under section 49(1)(c)
Having found unfair termination, the court exercised its discretion under section 49(1)(c). It considered the relatively short tenure of one year, ten months and sixteen days, the claimant's clean disciplinary record, the absence of cogent proof of pregnancy-based discrimination, and the fact that she did not appeal or respond to the redundancy notice to seek a softer landing. Three months' gross salary was held fair in the circumstances.
Legal principles established
#- Failure to issue a separate notice to the Labour Officer renders a redundancy unlawful
- Compliance with all conditions in section 40(1) of the Employment Act is mandatory for a valid redundancy
- Non-compliance with redundancy procedure converts the redundancy into unfair termination within section 45 of the Employment Act
- A female employee's right to maternity leave with full pay is triggered only by written notice to the employer
- Leave is a species of special damages that must be specifically pleaded and proved
- Housing allowance is payable at 15% of basic salary where the employer cannot show the salary was consolidated
Court orders
#- 1.A declaration that termination of the claimant's employment on account of redundancy was unfair is issued
- 2.One month's pay in lieu of notice of Kshs 70,000/=
- 3.Unpaid housing allowance at the rate of 15% of basic pay effective July 14, 2014
- 4.Service pay for 2 years under section 35(5) of the Employment Act
- 5.Compensation equivalent of 3 months gross salary under section 49(1)(c) of the Employment Act
- 6.Certificate of service to issue within 30 days of the judgment
- 7.Costs of the suit to the claimant
- 8.Interest at court rates from date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act in respect of employment and labour relations disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Koech v Bundotich & another (T/A M/S Kale Maina & Bundotich Advocates) (Cause 640 of 2017) [2022] KEELRC 1621 (KLR)", Case Analysis (2022). Employment and Labour Relations Cause, Nairobi (memorandum of claim dated April 3, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1621/eng@2022-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.