Kijuu v Hilcrest Investments Limited (Cause 403 of 2017) [2022] KEELRC 4156 (KLR)
The bottom line
#A Kenyan court ruled a teacher's redundancy was fake and unfair because the employer skipped mandatory notices and consultation, awarding compensation and costs.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the redundancy
The termination was procedurally unfair; the required written general notice under section 40 was not given, the notice to the Labour Officer came after the termination and was not a 30-day notice, and there was no consultation.
The burden was on the Respondent to establish adherence to the statutory procedure. The meeting of 16th August 2016 did not amount to the written general notice contemplated by section 40, as evidenced by the Claimant's email requesting formalisation. Even taken as a notice, it was not a 30-day notice. The Labour Officer's notice of 25th August 2016 postdated the termination and was likewise not a 30-day notice. The court rejected the respondent's reliance on Mercy Wangari Muchiri v Total Kenya Limited and held consultation to be mandatory, noting the Githinji JA dissent quoted was contra to the majority.
Substantive justification of the redundancy
The termination was not substantively justified; the Respondent failed to discharge its burden under sections 45(2) and 47(5).
The Respondent did not demonstrate the selection criteria or the extent of the redundancy, and the Claimant's evidence that only she was targeted went unchallenged. The Respondent's own documents showed preparatory school enrolment was increasing, contradicting the alleged decline in enrolment. The subsequent advertisement of teaching vacancies, one withdrawn after the Claimant's counsel's letter, showed business proceeded as before, establishing the redundancy was not genuine.
Entitlement to remedies
Most reliefs refused; the Claimant was awarded a declaration of unfair and wrongful termination, two months' gross salary as compensatory relief under section 49(1)(c), interest and costs.
Severance pay had already been paid and admitted; the eight months' notice claim had no contractual or statutory basis and notice pay had been made; salary for the unexpired contract term is not payable in Kenya though the position merits reconsideration. Considering the procedural and substantive unfairness, the no-fault nature of the termination, the Claimant's legitimate expectation under the uncommenced contract, and the notice pay made, compensation was limited to two months' gross salary of Kshs. 883,180.
Legal principles established
#- The statutory procedure under Section 40 of the Employment Act is mandatory and leaves no residual discretion for the employer to operate outside it in redundancy terminations.
- Section 40 contemplates two mandatory separate and distinct notices of thirty days each in redundancy situations - a general notice and an individual termination notice.
- Consultation between employer and employee is a mandatory and pivotal component of a fair redundancy process in Kenya.
- An employer who remains opaque on the selection criteria for redundancy renders the termination unfair and unjustified.
- Where business proceeds as before after an employee's exit, the redundancy is not genuine.
Court orders
#- 1.A declaration that the termination of the Claimant's employment on account of redundancy was unfair and wrongful.
- 2.Compensation pursuant to section 49[1][c] of the Employment Act, 2007, Kshs. 883,180.
- 3.Interest at Court rates from the date of this judgement till full payment.
- 4.Costs of this suit.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (Sections 40, 43, 45, 47(5), 49(1)(c))
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- M’Kungu v Presiding Bishop Methodist Church in Kenya & another (Cause 1560 of 2017) [2023] KEELRC 2251 (KLR)[2023] KEELRC 2251 (KLR)28 Sept 2023followed
- Mbage v Hillcrest Investment Limited (Employment and Labour Relations Cause 2007 of 2016) [2023] KEELRC 2096 (KLR)[2023] KEELRC 2096 (KLR)27 Jul 2023followed
Cite this brief
#Cite this brief
Caselaw, "Kijuu v Hilcrest Investments Limited (Cause 403 of 2017) [2022] KEELRC 4156 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/4156/eng@2022-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.