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ELRCPartially AllowedNot stated in the judgment text provided (Memorandum of Claim dated January 25, 2018)· [2023] KEELRC 1441 (KLR)

Ogallo v Feba Radio aka Baraka FM Limited (Cause 53 of 2018) [2023] KEELRC 1441 (KLR)

Employment and Labour Relations Court
2 June 2023
2,923 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a journalist's redundancy unfair because the employer could not prove the criteria used to select him for redundancy, awarding him Kshs 500,000.

What this practically means

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Executive summary

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The Claimant, a news reporter employed by the Respondent from 1/7/2004 on a salary that rose to Kshs 50,000 per month, was declared redundant by letter dated 25/2/2016 and his employment terminated on 1/4/2016. He sued seeking a declaration that the redundancy was procedurally unfair, severance pay at 15 days per completed year (Kshs 275,000), maximum compensation of Kshs 600,000, a certificate of service, costs and interest. The Respondent denied the claim, asserting all dues were paid and proper redundancy procedure followed. Without leave and after closure of pleadings, the Respondent filed a second response with a set-off/counter-claim alleging salary overpayment of Kshs 661,667 discovered through an internal audit. The court struck out that pleading, holding there cannot be two primary pleadings by the same party. On the merits, the court found the Respondent failed to demonstrate the criteria used in selecting the Claimant for redundancy, as required by Section 40(1)(c) of the Employment Act, and that allegations of poor performance and absenteeism were unproved; the redundancy was therefore unprocedural, unlawful and unfair. The overpayment claim was also unproved, the internal audit report not having been produced. The court awarded nine months' salary (Kshs 450,000) as compensation and one month's salary in lieu of notice (Kshs 50,000), subject to statutory deductions, ordered a certificate of service within 30 days, and awarded the Claimant costs of the suit and interest. Severance pay was declined in view of the finding of unfair termination.

Key legal issues

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01

Whether the Respondent's second response and counter-claim/set-off filed on 15/5/2018 without leave was properly on record

Holding

The purported pleading was struck out as there cannot be two primary pleadings by the same party on record at any given time.

Reasoning

Pleadings closed fourteen days after service of the Respondent's first response filed 19/2/2018; both counsel confirmed compliance with pre-trial directions on 23/2/2018. The Respondent later filed a second response and set-off/counter-claim on 15/5/2018 without leave of the Court and after closure of pleadings. Such a pleading cannot stand alongside an existing primary pleading and had to be struck out.

p. 4
02

Whether the termination of the Claimant's employment on account of redundancy was fair

Holding

The redundancy was unprocedural, unlawful and unfair because the Respondent failed to disclose or demonstrate any criteria for selection as required by Section 40(1)(c) of the Employment Act.

Reasoning

Section 40(1) sets out mandatory conditions for redundancy. RW-1 admitted under cross-examination that there was no specific criteria used in declaring the Claimant redundant and no set scale to measure performance. The allegations of poor performance and absence from work were not proved; there were no show cause or warning letters on record. Non-compliance with even one Section 40(1) condition invalidates the entire process.

p. 5
03

Whether the Respondent's claim of salary overpayment of Kshs 661,667 was proved

Holding

The allegation of overpayment was not proved; the internal audit report was not produced and the letter dated 30/6/2016 was allegedly received only in 2017 after termination.

Reasoning

RW-1 testified that the overpayment was discovered through an internal audit but admitted the audit report was not produced in court and that there was nothing on record showing the Claimant did not work on some days, no warning or show cause letters were issued, and no evidence of when the 30/6/2016 letter was served. The counter-claim had in any event already been struck out.

p. 6
04

What reliefs the Claimant is entitled to

Holding

Nine months' salary as compensation, one month's salary in lieu of notice, and a certificate of service; severance pay declined; costs and interest awarded.

Reasoning

Having found unfair termination, the court awarded the equivalent of nine months' salary as compensation considering the circumstances of termination, and one month's salary in lieu of notice under Section 35(1)(c) of the Employment Act. Severance pay was declined because the termination was found unfair rather than a valid redundancy. A certificate of service was ordered, with the award subject to statutory deductions under Section 49(2).

p. 6

Legal principles established

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  • All the conditions in Section 40(1) of the Employment Act must be complied with for a valid redundancy; failure to comply with any one condition renders the entire process illegal, invalid and unfair.
  • The employer bears the burden of proving compliance with the selection criteria under Section 40(1)(c) of the Employment Act.
  • A party cannot have two different primary pleadings on record at the same time; a pleading filed after closure of pleadings and without leave must be struck out.

Court orders

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  1. 1.The Respondent's Response to the memorandum of claim and set-off/counter-claim filed on 15/5/2018 is struck out
  2. 2.A declaration that the termination of the Claimant's employment on account of redundancy amounted to unfair termination of employment
  3. 3.Compensation for unfair termination of employment of Kshs 450,000 (nine months' salary)
  4. 4.One month salary in lieu of notice of Kshs 50,000 pursuant to Section 35(1)(c) of the Employment Act
  5. 5.The awarded sum shall be subject to statutory deductions pursuant to Section 49(2) of the Employment Act
  6. 6.The Respondent to issue the Claimant with a certificate of service within 30 days from the date of the judgment
  7. 7.The Claimant is awarded costs of the suit and interest
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and the Employment and Labour Relations Court (Procedure) Rules, 2016 (first-instance employment claim)

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, "Ogallo v Feba Radio aka Baraka FM Limited (Cause 53 of 2018) [2023] KEELRC 1441 (KLR)", Case Analysis (2023). Not stated in the judgment text provided (Memorandum of Claim dated January 25, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1441/eng@2023-06-02

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