Zewde v Sauti Moja Marsabit & another (Cause E003 of 2020) [2022] KEELRC 4101 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether there was a termination of employment of the claimant by the respondents
There was a termination of employment; the claimant's case that the redundancy was a concocted scheme was not controverted.
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.
Whether the termination was wrongful, unfair and unlawful
The termination was wrongful, unfair and unlawful, both substantively and procedurally.
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.
Whether the claimant is entitled to the reliefs sought
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.
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.
Legal principles established
#- 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
#- 1.A declaration that the termination of the employment of the claimant by the respondents was substantively and procedurally unfair
- 2.One (1) month's salary in lieu of notice of Kshs 112,750.00
- 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.The costs of the claim shall be borne by the respondents
- Jurisdiction invoked
- Employment and labour relations jurisdiction (Employment Act; claim originated by statement of claim dated November 15, 2020)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.