Makhulo v Planet Motors (MSA) Limited (Petition E020 of 2022) [2023] KEELRC 2032 (KLR)
The bottom line
#A Mombasa court ruled this redundancy unfair because the employer skipped a mandatory step—notifying the labour officer—but awarded only one month's salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim should have been brought as a constitutional petition rather than a Memorandum of Claim
The petition route was needless; adequate remedies exist under the Employment Act and Rule 7(3) permits raising constitutional rights in a statement of claim
The court followed Court of Appeal authority holding that Article 41 rights are enacted in the Employment Act and Labour Relations Act, which provide adequate remedy and orderly enforcement mechanisms. Rule 7(3) of the ELRC (Procedure) Rules, 2016 allows a party to seek enforcement of constitutional rights within a statement of claim. The matters raised were not novel, so invoking the petition route was needless; the respondent should have objected early.
Whether the termination by redundancy was fair and lawful
The termination was unfair; the respondent failed to demonstrate the reasons for and extent of the redundancy and did not notify the labour officer as required
While Section 40(1) of the Employment Act permits termination on account of redundancy due to operational requirements, the employer must demonstrate the reasons for and extent of the intended redundancy. A redundancy cannot exist merely to lay off one employee. Further, the notice of 31 December 2019 was not copied to the Labour Officer, a mandatory requirement under Section 40(1)(b) where the employee is not a union member. Non-compliance renders the termination unfair under Section 45(2)(b).
What remedies were due to the petitioner
One month's compensation at the last wage (Kshs 38,810) and a certificate of service; severance, service pay, house allowance and general damages refused
In assessing compensation under Section 45(5)(e), the court considered the petitioner's work record, including an unchallenged warning letter dated 14 March 2018 which remained part of his work records. Notice pay was paid for the month's notice served, and severance had been paid and acknowledged. The appointment letter did not confer service pay, house allowance was inapplicable, and discrimination claims were unparticularised.
Legal principles established
#- A redundancy cannot be used merely to single out and lay off a single employee; singling out an employee under the guise of redundancy is contrary to Article 41
- Non-compliance with the mandatory notification of the labour officer under Section 40(1)(b) of the Employment Act renders a redundancy termination unfair under Section 45(2)(b)
- Enforcement of Article 41 employment rights may be pursued within a Memorandum of Claim under Rule 7(3) of the ELRC (Procedure) Rules, 2016; a constitutional petition is unnecessary where remedies under the Employment Act are adequate
Court orders
#- 1.Judgment entered for the petitioner against the respondent with a finding that employment was terminated unfairly
- 2.Compensation for unfair termination awarded at Kshs 38,810
- 3.A Certificate of Service to be issued upon clearance
- 4.Each party to bear own costs
- Jurisdiction invoked
- Article 41 of the Constitution and the Employment Act, 2007, invoked through a constitutional petition before the ELRC
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makhulo v Planet Motors (MSA) Limited (Petition E020 of 2022) [2023] KEELRC 2032 (KLR)", Case Analysis (2023). Petition filed in the Employment and Labour Relations Court at Mombasa (formerly Mombasa ELRC Cause No. 708 of 2021, withdrawn). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2032/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.