Nyagah v Finn Church Aid Kenya (Cause 469 of 2018) [2023] KEELRC 770 (KLR)
The bottom line
#A Kenyan court ruled a redundancy unfair for late notice to the labour officer, but awarded no compensation because the employee received generous severance.
What this practically means
#Executive summary
#Key legal issues
#Sufficiency of notice and consultations to the employee under section 40
Notice to the employee was more than complied with because the contractual 3-month notice exceeded the statutory one month, and e-mails to all staff prepared the claimant for the redundancy
The contract provided a 3-month notice, exceeding section 40's one-month requirement. E-mails, including that of 22.08.2016 copied to the claimant, invited comments on the re-organisation; the claimant gave no views. The Court found she had sufficient opportunity to be heard during the notice period, satisfying the consultation requirement.
Notice to the labour officer under section 40(1)(b)
The undated notice received by the county labour office on 14.12.2016 for a termination effective 31.12.2016 was insufficient, rendering the termination procedurally unfair
The notice to the labour officer was undated and reached the county labour office only on 14.12.2016, roughly two weeks before the termination took effect, falling short of the one-month notice required by section 40(1)(b). This procedural breach made the redundancy unfair in procedure, though the overall reason for termination remained valid.
Selection criteria
No unfair selection was established; the claimant held the single position of Administrative Assistant and no particulars of unfair selection were pleaded
The claimant did not plead particulars of unfair selection. She occupied the only Administrative Assistant position, all ESARO employees were terminated, and she served both the Kenya office and ESARO, so no selection between comparable employees arose. The issue of selection criteria therefore did not arise.
Validity and fairness of the reason for termination
The redundancy was a valid reason under section 43 and fair under section 45
The claimant did not plead that the reasons for termination were not genuine. The evidence showed the respondent was closing the ESARO Regional Office and re-organising roles. The memo advertising an Office Assistant position related to a different job, so the redundancy reason stood as valid and fair at the time of termination.
Remedy under section 49 despite procedural unfairness
No compensation awarded because severance and notice exceeded statutory minima and the infraction was excusable
In exercising the section 49 discretion, the Court weighed that the respondent paid severance at one month per year above the statutory 15 days per year, gave a 3-month contractual notice, and the employee had opportunity to give views. Against these, the insufficient notice to the labour officer was excusable, so no award was made.
Legal principles established
#- A contractual notice period more generous than the statutory one-month notice under section 40 satisfies the statutory notice to the employee
- Termination by redundancy is unlawful where the notice to the area labour officer under section 40(1)(b) is insufficient
- Where only one employee holds the affected position, selection criteria issues do not arise
- Section 49 factors may justify declining compensation despite a procedural infraction
Court orders
#- 1.Declaration that the termination by way of redundancy was unfair in procedure in view of the insufficient notice to the labour officer
- 2.Each party to bear own costs of the suit
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (including sections 40, 43, 45 and 49) and the Labour Relations Act, 2007
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyagah v Finn Church Aid Kenya (Cause 469 of 2018) [2023] KEELRC 770 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/770/eng@2023-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.