Mtange & 2 others v Food and Agriculture Organization (FAO) & another (Cause 36 of 2020) [2023] KEELRC 1731 (KLR)
The bottom line
#A Kenyan court ruled UN employees were lawfully made redundant but each is owed Kshs. 604,656 severance pay, plus costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimants held the higher-graded logistics assistant (G4/G5) positions entitling them to salary arrears
The claim failed; the written contracts recorded Tallying Assistant - G2 positions and no proof of written change of terms existed
The court held that change of terms under sections 10 and 13 of the Employment Act requires a written statement of particulars of the change. The claimants' own submissions admitted they were logistics clerks, and the last written contracts titled them tallying assistants at G2 under fixed-term contracts. Communications raising regrading were rhetorical and unanswered. Conferring higher positions without the respondents' written approval would negate the sanctity of the written contracts.
Whether termination of employment was unfair
Not unfair; it was a lawful redundancy under Section 40, with six months' notice, reasons and opportunity to apply for new posts
The termination letters disclosed an approved organisational alignment under the Country Strategic Plan, with positions abolished and new positions advertised. The employer gave six months' notice and reasons, satisfying Section 40. Under Section 45(2) the reason was valid and based on operational requirements. The claimants were encouraged to apply for new positions but did not, and gave no reasons for this inaction, so they cannot claim unfairness.
Whether severance pay is due
Yes, at the minimum fifteen days' pay per completed year from 31 December 2006 (when employment became continuous and pensionable) to 31 March 2019, a total of 12 years, yielding Kshs. 604,656 each
Although the claimants pleaded 17-18 years' service, the Amended Memorandum of Claim pleaded that employment became continuous and pensionable from 31 December 2006. The court tabulated 12 full years of service from that date to the end of the notice on 31 March 2019. Applying the last salary of Kshs. 100,775.41 and the statutory minimum of 15 days per year, each claimant was awarded Kshs. 604,656.
Whether the 1st and 2nd respondents enjoy immunity from suit
No; the parties were in agreement, and the court accepted, that the respondents had no immunity as they were bound by Kenyan laws under Section 26(b) of the 2002 Basic Agreement
Both the claimants and the 3rd respondent submitted that the 1st and 2nd respondents, though enjoying privileges and immunities under Article V section 7 of the Basic Agreement, had no immunity in these claims because they contracted under Kenyan law and, under Section 26(b) of the Basic Agreement, agreed to be subject to and cooperate under Kenyan law. The court determined the matter on the merits on this basis.
Legal principles established
#- A term-bound written contract of employment must be respected; unwritten terms cannot be inferred where the particulars have not been varied in writing under sections 10 and 13 of the Employment Act
- Loss of employment by redundancy arises where services of an employee are superfluous through abolition of job, at no fault of the employee (applying Kenya Airways v Aviation and Allied Workers Union)
- Where an employer is justified in reorganising its operations in accordance with the law, an employee who declines to apply for advertised new positions cannot later claim unfairness
- Upon restructuring or realignment leading to termination for no fault of either party, severance pay is due under Section 40 at not less than fifteen days' pay per completed year of service
- An employee is entitled to a certificate of service at the end of employment whatever the reason for termination
Court orders
#- 1.Judgment entered for the claimants against the 1st and 2nd respondents for severance pay at Kshs. 604,656 each
- 2.Claimants awarded costs of the suit
- Jurisdiction invoked
- Article 162(2) of the Constitution of Kenya (employment and labour relations disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mtange & 2 others v Food and Agriculture Organization (FAO) & another (Cause 36 of 2020) [2023] KEELRC 1731 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1731/eng@2023-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.