Wachira & another v Bamburi Cement Limited (Cause 165 of 2018) [2023] KEELRC 1789 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy complied with Section 40(1) of the Employment Act, 2007
The redundancy was irregular: the notice was issued only four days before the effective date, contained neither reasons for nor extent of the redundancy, there was no evidence of service on the Labour Officer, no selection criteria, and no consultation.
The court applied Section 40(1)(a), (b) and (c) of the Employment Act as explained in Freight-In Time Ltd v Rosebell Wambui Munene. The notice dated September 27, 2016 took effect October 1, 2016, contrary to the one-month requirement. It omitted the reasons and extent of redundancy. No evidence of service on the Labour Officer was availed, no selection criteria or interviews were demonstrated, and the Respondent failed to prove the positions were abolished, rendering the process unfair under Section 45.
Whether the Respondent violated the Claimants' constitutional rights
No constitutional violation was proved; the Claimants failed to particularise discrimination or adduce evidence of hardship and indignity.
The court distinguished the unfairness of the redundancy process from constitutional violations, holding that non-compliance with Section 40(1) does not automatically amount to a breach of the Constitution. The Claimants did not particularise acts of discrimination, admitted the Respondent's prerogative to transfer, and tendered no evidence of economic hardship.
Whether the Claimants were coerced into the exit package or estopped from claiming
Coercion was not proved; estoppel also failed as no promise or representation relied upon by the Respondent was demonstrated. The payment documents were not discharge vouchers.
The court found that a party relying on duress must show it was exerted by the other party, which the Claimants did not. On estoppel, applying High Trees House and Combe v Combe, no promise or representation was shown which the Respondent relied upon to alter its position. The Coastal Bottlers decision on discharge vouchers was inapplicable since no discharge voucher existed.
Entitlement to compensation under Section 49(1)(c) of the Employment Act
The Claimants were awarded the equivalent of four months' gross salary each, considering their length of service, clean disciplinary record, lack of contribution to the termination, and the abrupt manner of the redundancy.
The court considered the parameters under Section 49(4): the 1st Claimant served about six years and the 2nd about four years; neither had disciplinary issues nor contributed to the termination. The Respondent's treatment—abrupt declaration without consultation and delayed payment of dues—was held not decent, justifying four months' gross salary.
Legal principles established
#- An employer bears an enormous burden of proof to justify termination of employment on account of redundancy under Section 40(1) of the Employment Act.
- Notice under Section 40(1)(b) of the Employment Act must issue at least one month before the effective date of redundancy.
- A redundancy notice must set forth the reasons for and the extent of the intended redundancy.
- Meaningful pre-redundancy consultation is an integral part of emerging employment law jurisprudence.
- A party alleging discrimination must first establish a prima facie case before the burden shifts to the employer.
- A party relying on duress to vitiate a signature must demonstrate that the duress was exerted by the other party.
- Claims for salary for the remaining period till retirement are unsustainable in law as anticipatory earnings.
Court orders
#- 1.Relocation allowance equivalent to one (1) month's salary to the 2nd Claimant.
- 2.Equivalent of 4 months' gross salary as compensation to the 1st and 2nd Claimant.
- 3.Costs of this suit to the Claimants.
- 4.Interest at court rates from date of judgment till payment in full.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under Article 162(2) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wachira & another v Bamburi Cement Limited (Cause 165 of 2018) [2023] KEELRC 1789 (KLR)", Case Analysis (2023). ELRC Cause No. 165 of 2018 (consolidated with Cause No. 166 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1789/eng@2023-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.