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ELRCPartially AllowedCause No E003 of 2020· [2022] KEELRC 4101 (KLR)

Zewde v Sauti Moja Marsabit & another (Cause E003 of 2020) [2022] KEELRC 4101 (KLR)

Employment and Labour Relations Court
28 September 2022
1,699 words in judgment
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The bottom line

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A Kenyan court ruled a NGO's 'redundancy' was fake and awarded the fired manager nearly Kshs 790,000 because the employer skipped mandatory legal steps.

What this practically means

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Executive summary

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The claimant, employed by the 1st respondent (a community based organisation in Marsabit County) from December 2016 as Project Manager in the Food and Nutrition Section on a gross salary later stated as Kshs 112,750.00, was terminated by notice of redundancy dated May 4, 2020 following a restructuring programme. He challenged the redundancy as a smokescreen, pleading non-compliance with section 40 of the Employment Act (no report to the labour office, no selection criterion, no discontinuation of the project) and sought notice pay, four months' salary, gratuity, leave pay, housing allowance, twelve months' compensation, costs, interest and a certificate of service. The respondents denied the claim, raised capacity and jurisdiction objections (contending the matter belonged in Marsabit), and asserted the termination was contractual, occasioned by restructuring and lack of donor funding. The court, upon written submissions, framed four issues and found that the claimant's case was uncontroverted: there was no evidence of donor-driven restructuring or funding discontinuation, and the same position was refilled as Project Officer on June 5, 2020, the claimant's last working day. The defence was 'hollow and not convincing.' The court held the termination substantively and procedurally unfair, awarded a declaration, one month's salary in lieu of notice (Kshs 112,750.00), six months' compensation (Kshs 676,500.00), total Kshs 789,250.00, with costs to the respondents. Several heads of relief sought were not granted in the final orders.

Key legal issues

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01

Whether there was a termination of employment of the claimant by the respondents

Holding

There was a termination of employment; the claimant's case that the redundancy was a concocted scheme was not controverted.

Reasoning

The court found the claimant's account that the redundancy was concocted following internal disagreements with management was uncontroverted. The respondents did not dispute the frosty relationship preceding the notice, produced no evidence of donor-requested restructuring or discontinuation of funding, and refilled the same position as Project Officer by June 5, 2020, the claimant's last working day. The defence was described as hollow and unconvincing.

p. 4
02

Whether the termination was wrongful, unfair and unlawful

Holding

The termination was wrongful, unfair and unlawful, both substantively and procedurally.

Reasoning

The purported redundancy failed to meet the procedural requirements of section 40 of the Employment Act: no report was made to the labour office, no criterion for selecting the claimant was used, and the project continued. The court found the claimant's case overwhelming on a balance of probabilities and held that the respondents failed to demonstrate a valid reason and due process, rendering the termination unfair.

p. 4
03

Whether the claimant is entitled to the reliefs sought

Holding

The claimant is entitled to relief; a declaration of unfair termination, one month's salary in lieu of notice, six months' compensation and costs were awarded.

Reasoning

Having succeeded in establishing unlawful termination, the claimant became entitled to relief. However, the court did not grant the full suite of reliefs claimed: it awarded one month's notice pay and six (rather than twelve) months' compensation, and did not grant the claimed unpaid salary for May–August 2020, gratuity, leave days, housing allowance, interest or a certificate of service.

p. 4

Legal principles established

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  • Unfair termination occurs where the employer fails to prove that the reasons for termination are valid or a fair reason, or that due procedure was followed.
  • Redundancy must strictly comply with section 40 of the Employment Act, including notification to the labour office; failure to do so renders the termination unfair.

Court orders

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  1. 1.A declaration that the termination of the employment of the claimant by the respondents was substantively and procedurally unfair
  2. 2.One (1) month's salary in lieu of notice of Kshs 112,750.00
  3. 3.Six (6) months' salary as compensation for unlawful termination of employment, Kshs 112,750.00 x 6 = Kshs 676,500.00, total award Kshs 789,250.00
  4. 4.The costs of the claim shall be borne by the respondents

Authorities

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Legislation

  • Employment ActSection 45
  • Employment ActSection 40(1)(b)
  • Employment ActSection 40
  • Civil Procedure Act (overriding objectives, sections 1A and 1B as referenced by the respondents)Sections 1A and 1B

Cases cited (1)

  • Kenya Union of Commercial, Food & Allied Workers v Kisii Bottlers Limited [221] eKLR
    [221] eKLR
Jurisdiction invoked
Employment and labour relations jurisdiction (Employment Act; claim originated by statement of claim dated November 15, 2020)

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, "Zewde v Sauti Moja Marsabit & another (Cause E003 of 2020) [2022] KEELRC 4101 (KLR)", Case Analysis (2022). Cause No E003 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4101/eng@2022-09-28

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