Mwanje v A to Z Transporters Ltd (Cause 70 of 2018) [2023] KEELRC 1990 (KLR)
The bottom line
#A Mombasa court ruled a transport company's redundancy was unfair because it skipped mandatory notice steps and had no proof of financial hardship.
What this practically means
#Executive summary
#Key legal issues
#Procedural fairness of the redundancy
The redundancy notice failed to name or identify the affected employees, their posts or selection criteria, was not shown to have been served on the County Labour Officer, and was served on the union only about a month and fell short of the mandatory notice period; no consultation with the Claimant was shown
Section 40(1)(a)-(c) requires notification of reasons and extent of redundancy to the union and labour officer not less than one month prior, and selection with due regard to seniority, skill, ability and reliability. The notice of 18/11/2016 did not identify the employees, posts or criteria; service on the union was on 21/11/2016 for redundancy effective 17/12/2016, short of the mandatory period; the labour officer's service was not proved; and the Claimant was never consulted.
Substantive justification for the redundancy
The Respondent failed to prove the alleged reason (inability to sustain the wage bill); no audited accounts were produced and no evidence that the Claimant's mechanic post was abolished
A termination must rest on a valid and proved reason. RW-1 admitted he had no documents showing the company had closed and no evidence that the mechanic post had been abolished. No audited statements of account were produced to demonstrate inability to meet the wage bill, so the asserted reason for redundancy was not substantively justified.
Reliefs
Claimant awarded eight months' salary compensation (ksh. 213,408), one month's notice pay (ksh. 26,676), a certificate of service, costs and interest; service pay disallowed due to NSSF membership
Having found procedural and substantive unfairness, the court exercised discretion under the Employment Act to award compensation equivalent to eight months' salary at the admitted wage of ksh. 26,676, plus notice pay. Service pay was barred by Section 35 because the Claimant contributed to NSSF. A certificate of service is mandatory under Section 51(1).
Legal principles established
#- A valid redundancy must comply strictly with the mandatory conditions in Section 40(1) of the Employment Act, including one month's prior notice to the union and labour officer and due regard to seniority, skill, ability and reliability in selection
- Fairness of termination requires both substantive justification (valid reason) and procedural fairness
Court orders
#- 1.Judgment entered for the Claimant against the Respondent for one month salary in lieu of notice of ksh. 26,676
- 2.Compensation for unfair termination of employment of ksh. 213,408 (equivalent of eight months' salary), totaling ksh. 240,084
- 3.The Claimant is awarded costs of the suit and interest at Court rates
- 4.The Respondent shall issue the Claimant with a certificate of service within thirty days of the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act 2007 (first-instance memorandum of claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwanje v A to Z Transporters Ltd (Cause 70 of 2018) [2023] KEELRC 1990 (KLR)", Case Analysis (2023). Cause No 70 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1990/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.