Nyogensa v Tophill Hospital Brain and Spine Centre (Cause 41 of 2019) [2023] KEELRC 1484 (KLR)
The bottom line
#A Kenyan court ruled that redundancy of a single senior employee doesn't require full Section 40 procedures, but the worker still deserved notice pay, leave pay and severance.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the redundancy adhered to the provisions of section 40 of the Employment Act, including notice and notification of the Labour Office
- 2.Whether the claimant's duties were restricted to supervising construction and completion of the hospital
- 3.Whether the claimant was entitled to overtime pay and pay for work on Sundays and public holidays
- 4.Whether the claimant was entitled to leave pay and severance pay
Key legal issues
#Compliance with section 40 of the Employment Act in declaring redundancy
The respondent substantially complied: the claimant was paid in lieu of notice and, as a senior contract employee capable of bargaining his exit, the full rigours of section 40 (including notice to the Labour Office) were not mandatory
The court adopted the Court of Appeal's position in Kenya Revenue Authority v Menginya Salim Murgani that decision-making bodies may follow their own procedures provided fairness is achieved, and that redundancy of one or two senior employees need not follow the full rigours of section 40. The claimant was a fairly senior employee on contract terms. He received payment in lieu of notice; his entitlements were computed and offset against sums paid.
Entitlement to notice pay, leave pay and severance on redundancy
The claimant was entitled to one month's pay in lieu of notice, one month's salary in lieu of leave, and severance pay, totaling Kshs 266,250, from which the Kshs 158,176 already paid was deducted, leaving Kshs 108,074
Section 40 entitles a redundant employee to notice or pay in lieu, leave pay and severance pay. Based on the appointment letter gross pay of Kshs 106,500, the court calculated one month's notice pay, one month's leave pay, and 15 days' severance for the one completed year, totaling Kshs 266,250, less Kshs 158,176 paid.
Whether the claimant was entitled to overtime and pay for work on Sundays and public holidays
Rejected. The claimant signed the offer without amendment and produced no evidence of requesting overtime pay and being refused
A project is like piece rate work; the claimant as project manager negotiated or could negotiate his task. He signed the offer without amendments and did not produce evidence that he requested overtime pay and was turned down. The court cannot rewrite the contract to introduce terms never agreed upon yet within the parties' reasonable contemplation.
Legal principles established
#- Not every declaration of redundancy, especially involving one or two senior employees capable of bargaining their exit, must undergo the full rigours of section 40 of the Employment Act
- The decision to declare redundancy is the employer's alone, provided the employer substantially complies with section 40
- A court cannot rewrite a contract between parties by introducing terms the parties never agreed upon
Court orders
#- 1.The Court awards the claimant the sum of Kshs 108,074, being the amount calculated under paragraph 18 less Kshs 158,176 already paid to the claimant
- 2.The award shall attract interest at Court rates from the date of judgment until payment in full but subject to statutory deductions
- 3.The claimant shall have costs of the suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes under the Employment Act, 2007
Relief refused
#Overtime pay and pay for work on Sundays and public holidays
The claimant signed the appointment offer without amendments and produced no evidence that he requested overtime pay and was refused; the court cannot rewrite the contract
Claim for unpaid leave and severance beyond what was awarded
Entitlements were computed under section 40 and offset against the Kshs 158,176 already paid
Costs
The claimant shall have costs of the suit.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion the Court awards the claimant the sum Kshs 108,074. Which is the amount calculated under paragraph 18 above less Kshs 158,176 already paid to the claimant.
The award shall attract interest at Court rates from the date of judgment until payment if full but subject to statutory deductions. The claimant shall further have costs of the suit.
However not every declaration of redundancy especially where it involves one or two employees and who are of a higher cadre and capable of bargaining their exit should undergo the full rigours of section 40 of the Act.
The Court cannot therefore rewrite a contract between parties and introduce a matter the parties never agreed upon yet was within their reasonable contemplation and which they could have further bargained.
Issues in the judgment
#Contradiction in stated employment start and contract basis: pleadings say permanent employment from January 6, 2018, while the respondent states the claimant was employed on contract basis from January 1, 2018
Discrepancy in monthly pay figures: the letter of appointment is said to state Kshs 65,333 basic plus Kshs 21,167 house allowance, while the pleadings and computation use Kshs 106,000/106,500 gross
Set-off figure appears as Kshs 158,000 in the claimant's evidence but Kshs 158,176 in the final computation
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyogensa v Tophill Hospital Brain and Spine Centre (Cause 41 of 2019) [2023] KEELRC 1484 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1484/eng@2023-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.