Waweru v Mua Insurance (Kenya) Limited (Cause 397 of 2019) [2023] KEELRC 1961 (KLR)
The bottom line
#Kenya's Employment Court ruled the redundancy unfair because the employer couldn't prove how it selected the employee, awarding her 12 months' salary.
What this practically means
#Executive summary
#Key legal issues
#Compliance with section 40 of the Employment Act in redundancy terminations
The redundancy was unfair and unlawful because the respondent failed to demonstrate the selection criterion, ignored LIFO/FILO principles, and forced the claimant to take leave instead of paying leave dues in cash
Section 40 conditions must be strictly adhered to. The respondent did not show the criterion used to select the claimant, and the court inferred cost-saving motives given her higher earnings relative to the Mauritius resource. Leave was consumed rather than paid in cash, contrary to section 40(1)(e), rendering the process contra statute.
Mitigation and entitlement to exemplary damages
Exemplary damages for lost opportunities refused; the claimant had to mitigate her losses and section 49 provides a sufficient remedy
The court accepted the respondent's submission that the position was not guaranteed indefinitely and the claimant, not being at the tail end of her career, ought to have sought alternative engagement. Compensation of 12 months' salary was set as the appropriate remedy under section 49.
Counter-claim for breach of confidentiality
Counter-claim dismissed: no disclosure in rem, no improper use for unfair advantage, and no demonstrated loss
The respondent had to prove interest in confidential information, its confidential nature, a duty of confidence, knowing appropriation and improper use, and damage. Filing the minutes in court was accessible only to authorised persons, and no financial or reputational loss was demonstrated.
Legal principles established
#- An employer must demonstrate the criterion applied in selecting an employee for redundancy; failure to apply seniority-based criteria (LIFO/FILO) or other section 40 criteria renders the redundancy unfair and unlawful
- An employee declared redundant must be paid leave dues in cash, not sent out to serve the leave
- Elements an employer must establish in a claim for breach of confidence against a former employee
- Use of confidential documents within court pleadings is not a disclosure in rem where only authorised persons can access the court file
Court orders
#- 1.A declaration that the Claimant's termination was unfair and unlawful for breaching the statutory interdict of section 40 of the Employment Act
- 2.Compensation for unfair and unlawful termination at 12 months salary compensation
- 3.Costs of the suit to the claimant
- 4.Interest on the compensation at court rates from the date of judgment till payment in full
- 5.The respondent's counter-claim dismissed with no order as to costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (section 40 and section 49) over a claim for unfair termination disguised as redundancy
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waweru v Mua Insurance (Kenya) Limited (Cause 397 of 2019) [2023] KEELRC 1961 (KLR)", Case Analysis (2023). Cause No 397 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1961/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.