Kerrow & 40 others v Kenya Power & Lighting Co Limited (Employment and Labour Relations Cause E041 of 2022) [2023] KEELRC 1608 (KLR)
The bottom line
#The Employment and Labour Relations Court dismissed 22 former Kenya Power employees' challenge, finding their 2002 redundancy was lawful and fully paid.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy process was unfair and unlawful
The redundancy was fair and lawful: notice was given to the Union on 23rd April 2001 and to the Ministry of Labour on 26th June 2001, the Ministry approved the programme, and a consent in HCCC No. 739 of 2001 allowed the process to proceed
The court examined the applicable law at the material time, section 16A of the repealed Employment Act Cap 226, which required notification of the union and labour officer at least one month before redundancy. The letters of 23rd April 2001 and 26th June 2001 satisfied this. Additionally, the Union's suit was compromised by a consent permitting the redundancy, and the Ministry of Labour approved the programme. The claimants' contentions on short notice and breach of the CBA failed against this evidence.
Whether the claimants were paid their terminal dues in full
The claimants were paid as per the redundancy notice and the CBA prevailing at the time; the worked example of CW-14 showed no miscalculation, with notice pay on basic salary and severance on gross salary subject to tax
Using Richard Yavan (CW-14) as a sample, the court computed the notice pay (gross salary x 3) and severance (14 years x 1¾ x gross salary less statutory deductions) and found the payments made matched the CBA formula. The claimants admitted receiving notice and severance pay and did not demonstrate specific shortfalls. Claims for the Golden Handshake, 6% salary increase and pay until retirement were not established as entitlements under the CBA.
Whether the claimants are entitled to the remedies sought
Having found due process and full payment, the prayers sought were not tenable and the claim failed
Since the court found the redundancy was effected fairly and the terminal dues were correctly calculated under the CBA, the declaration that dismissal was wrongful and illegal, general damages, costs and interest could not issue. The claim was dismissed in its entirety.
Legal principles established
#- Where parties have entered a court consent allowing a redundancy process to proceed, the redundancy effected pursuant to that consent is carried out fairly and lawfully
- Under the repealed Employment Act Cap 226, section 16A, redundancy required notice to the union and the labour officer at least a month before the intended redundancy, which was satisfied by the letters of 23rd April 2001 and 26th June 2001
- Notice pay calculated on basic pay and severance pay calculated on gross pay, with tax deductions, as per the CBA, does not amount to underpayment
Court orders
#- 1.The claim is dismissed
- 2.No order of costs
- Jurisdiction invoked
- Jurisdiction transferred from the High Court by order of T. M Matheka J on 17th October 2022 following establishment of the Employment and Labour Relations Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kerrow & 40 others v Kenya Power & Lighting Co Limited (Employment and Labour Relations Cause E041 of 2022) [2023] KEELRC 1608 (KLR)", Case Analysis (2023). ELRC Cause (formerly High Court Civil Case No. 103 of 2003). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1608/eng@2023-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.