Tialal & 2 others v Jubilee Party (Petition E180 & E177 of 2021 & E063 of 2022 (Consolidated)) [2023] KEELRC 1483 (KLR)
The bottom line
#Jubilee Party wrongfully made three staff redundant without proper notice or fair selection, and a Kenyan court ordered it to pay them compensation and costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the constitutional petition met the threshold of specificity (Anarita Karimi test)
The petition failed the specificity threshold; no particulars of violation of articles 27, 41 and 47 were pleaded or proved.
The court applied Anarita Karimi Njeru and Mumo Matemu as explained in David Mathu Kimingi v SMEC International, finding the petitioners alleged constitutional violations without specific particulars or evidence. There was no evidence of ethnic targeting, unfair labour practice or unfair administrative action, so the constitutional claims failed.
Whether the redundancy complied with section 40(1) of the Employment Act
The respondent completely failed the procedural test: no one month written notice to employees or the Labour Office, no written selection criteria, and no payment in lieu of untaken leave days.
Applying Thomas De la Rue v David Opondo Omutelema, the court found the petitioners were only served termination letters on the effective date, selection criteria was not disclosed or shown to be fair, and leave days were not established and paid, breaching section 40(1)(e).
Whether the termination was unlawful and unfair and what compensation is due
The termination violated sections 36, 40, 41, 43 and 45 of the Employment Act and was unlawful and unfair; compensation awarded under section 49(1)(c) at six months' salary for Wilson and three months' each for Ombasa and Ruth.
The petitioners lost their jobs unfairly, did not contribute to the termination, were unfairly selected without reasons, and had no adverse records. Relying on Fanice Owela Amino Ndengu and Brian Kimani Ngichiri, the court granted compensation proportionate to length of service.
Legal principles established
#- An ordinary claim for unlawful and unfair termination on grounds of redundancy should be brought by way of a memorandum of claim, not a constitutional petition, unless particulars of constitutional violation are specifically pleaded.
- Section 40(1) of the Employment Act requires three-fold written notices of not less than one month before termination on grounds of redundancy - to the union where employees are unionised, to the employee if not unionised, and to the Labour Office.
- An employer conducting a redundancy must provide and demonstrate a fair written selection criteria and pay salaries in lieu of untaken leave days under section 40(1)(e).
Court orders
#- 1.Wilson is granted the equivalent of six (6) months' salary in compensation for the unlawful and unfair termination of employment in the sum of Kshs.360,000 (60,000 x 6).
- 2.Ombasa is granted the equivalent of three (3) months' salary in compensation in the sum of Kshs.600,000 (200,000 x 3).
- 3.Ruth is granted the equivalent of three (3) months' salary in compensation in the sum of Kshs.150,000 (50 x 3).
- 4.All the petitioners to be granted a Certificate of Service within 30 days of the judgment.
- 5.Interest at Court rates on the compensation awards from date of judgment till payment in full.
- 6.Costs of the suit to the petitioners.
- 7.All other claims set out in the consolidated petition dismissed for lack of merit.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution and Employment and Labour Relations Court (Procedure) Rules, 2016
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tialal & 2 others v Jubilee Party (Petition E180 & E177 of 2021 & E063 of 2022 (Consolidated)) [2023] KEELRC 1483 (KLR)", Case Analysis (2023). Consolidated Petitions (Petition No. E063 of 2022; Petition No. E177 of 2022; Petition No. E180 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1483/eng@2023-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.