Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 344 of 2018· [2023] KEELRC 1743 (KLR)

Master & 10 others v Africa Apparels EPZ Ltd (Cause 344 of 2018) [2023] KEELRC 1743 (KLR)

Employment and Labour Relations Court
12 July 2023
JGJacob Gakeri
4,250 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that a redundancy without proper statutory notice and Labour Officer notification is unfair termination, entitling affected workers to compensation.

What this practically means

#

Executive summary

#
Eleven former employees of Africa Apparels EPZ Ltd sued for unlawful constructive dismissal and terminal dues, contending that from January 2016 they were denied work, which amounted to constructive dismissal. The Respondent admitted employment but asserted the Claimants were laid off owing to shortage of orders, that they were engaged on short renewable contracts, and that notice pay, January salary and 22 days' February salary were paid. The court framed three issues: employment status, fairness of termination, and reliefs. It found that neither party maintained comprehensive employment records as required by Section 74 of the Employment Act, and that the 6th Claimant failed to prove an employment relationship. Although the Respondent admitted the termination was a redundancy, it failed to comply with the mandatory conditions in Section 40(1): the letter of 9th March 2016 was an ordinary termination letter, not the statutory notice; no notice was given to the Labour Officer; and there was no evidence of consultations, selection criteria or actual payments. The redundancy was therefore an unlawful and unfair termination. The court also held that the Respondent failed to prove desertion by the 5th and 10th Claimants, whose January 2016 payslips showed services rendered. Claimants who executed clearance certificates in full and final settlement (1st, 2nd, 3rd and 11th) had their claims dismissed, as were the 4th Claimant's (having been reinstated) and the 6th Claimant's. Judgment was entered for the 5th, 7th, 8th, 9th and 10th Claimants for a declaration of unfair termination, one month's salary in lieu of notice, compensation equivalent of two months' gross salary under Section 49, costs and interest.

Key legal issues

#
01

Whether the Claimants proved employment with the Respondent

Holding

Not all Claimants proved employment; the 6th Claimant failed to prove an employment relationship on a balance of probabilities, and the Respondent failed to keep comprehensive records under Section 74 of the Employment Act.

Reasoning

The Respondent admitted in its Memorandum of Response that the Claimants were its employees but its witness conceded not all were. Neither party filed comprehensive employment records as required by Section 74. Documentary and oral evidence showed no employment relationship with the 6th Claimant, who therefore failed to discharge the burden of proof.

p. 6
02

Whether the redundancy complied with Section 40(1) of the Employment Act

Holding

The redundancy was unlawful; the Respondent failed to issue the notice contemplated by Section 40(1)(b), gave no notice to the Labour Officer, and adduced no evidence of consultations, selection criteria or payments.

Reasoning

The letter dated 9th March 2016 had no date of termination or acknowledgement and was an ordinary termination letter, not the statutory notice. RWI admitted no prior notice of redundancy was given and the Respondent had no evidence of who was paid or how much, rendering the purported redundancy an unfair termination.

p. 8
03

Effect of executed clearance certificates on terminal dues claims

Holding

Claimants who executed clearance certificates agreeing to full and final settlement discharged the Respondent from further contractual liability; none alleged vitiation.

Reasoning

The certificates were analogous to discharge vouchers binding on the makers absent proof of duress, misrepresentation or undue influence. None of the four signatories denied signing or receiving payment, so their claims were unsustainable and dismissed.

p. 9
04

Reliefs for the 5th, 7th, 8th, 9th and 10th Claimants

Holding

Entitled to a declaration of unfair termination, one month's salary in lieu of notice, and compensation equivalent of two months' gross salary under Section 49(1)(c) read with Section 49(4) of the Employment Act.

Reasoning

The court considered length of service (less than 3 years), non-contribution to the termination, absence of expressed wish to remain, and non-appeal of the termination decision, concluding two months' gross salary as fair compensation.

p. 11

Legal principles established

#
  • Redundancy is a termination at the employer's instigation but its process is regulated by law to ensure substantive justification and procedural fairness under Section 45(2) of the Employment Act.
  • Compliance with the seven mandatory conditions in Section 40(1) of the Employment Act is a precondition to a lawful redundancy.
  • A clearance certificate akin to a discharge voucher binds the signatory unless execution is shown to be vitiated by duress, misrepresentation, undue influence or incapacity.
  • An employer alleging desertion must prove it took steps to ascertain why the employee was absent, including notices to show cause or a dismissal letter.

Court orders

#
  1. 1.Declaration that termination of the 5th, 7th, 8th, 9th and 10th Claimants' employment on account of redundancy was unfair
  2. 2.One month's salary in lieu of notice to the 5th, 7th, 8th, 9th and 10th Claimants
  3. 3.Equivalent of 2 months salary to the 5th, 7th, 8th, 9th and 10th Claimants
  4. 4.Costs of the suit to the successful Claimants
  5. 5.Interest at court rates from date of judgment till payment in full
  6. 6.Dismissal of the claims of the 1st, 2nd, 3rd and 11th Claimants (executed clearance certificates)
  7. 7.Dismissal of the 6th Claimant's claim for failure to prove employment relationship
  8. 8.Dismissal of the 4th Claimant's claim (reinstated to employment)

Authorities

#

Legislation

  • Employment ActSection 40
  • Employment ActSection 40(1)(b)
  • Employment ActSection 45
  • Employment ActSection 45(2)
  • Employment ActSection 47(5)
  • Employment ActSection 49(1)(c)
  • Employment ActSection 49(4)
  • Employment ActSection 74
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48

Cases cited (10)

  • Amalgamated Union of Kenya Metal Workers V Associated Motors Ltd
    (2021) eKLR
  • Walter Ogal Anuro V Teachers Service Commission
    (2013) eKLR
  • Kenya Airways Ltd v Aviation & Allied Workers Union Kenya & 3 others
    (2014) eKLR
  • Barclays Bank of Kenya Ltd & another V Gladys Muthoni & 20 others
    (2018) eKLR
  • Felistas Acheha Ikatwa v Charles Peter Otieno
    (2018) eKLR
  • Judith Atieno Owuor v Sameer Agriculture & Livestock Ltd
    (2020) eKLR
  • Thomas De La Rue (K) Ltd v David Opondo Omutelema
    (2017) eKLR
  • Coastal Bottlers Ltd v Kimathi Mithika
    (2018) eKLR
  • Trinity Prime Investments Ltd v Lion of Kenya Insurance Co. Ltd
    (2015) eKLR
  • D.K. Njagi Marete v Teachers Service Commission
    (2020) eKLR
Jurisdiction invoked
First-instance employment and labour relations dispute under the Employment Act, 2007

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Master & 10 others v Africa Apparels EPZ Ltd (Cause 344 of 2018) [2023] KEELRC 1743 (KLR)", Case Analysis (2023). Cause No 344 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1743/eng@2023-07-12

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