Ochieng v Tuko Media Limited (Cause E1070 of 2021) [2023] KEELRC 2117 (KLR)
The bottom line
#A Kenyan court ruled that issuing only a termination letter is not a lawful redundancy, awarding an employee eight months' salary.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the termination of the Claimant's employment was lawful and fair
- 2.Whether the Claimant is entitled to remedies sought
- 3.Whether the Respondent has made out a proper Counterclaim against the Claimant
Key legal issues
#Compliance with Section 40 conditions for redundancy
Termination was unlawful and unfair because no redundancy notice or consultation preceded the termination; only a termination letter was issued
The court set out the Section 40(1) conditions and the authorities requiring one-month notice to the employee and Labour Officer plus consultation. All the Respondent did was issue a termination letter with payment; no prior redundancy notice with attendant consultation was issued, so substantive and procedural fairness failed.
Objective selection criteria under Section 40(1)(c)
Selection based on performance (never previously raised) and cost of employment was not a valid objective criterion
The Managing Director testified selection was based on performance and cost. There was no evidence of prior performance concerns being raised, and cost alone cannot justify selection of an employee for redundancy, breaching Section 40(1)(c).
Appropriate remedies
Re-instatement and re-engagement refused; eight months' salary compensation awarded
Considering the Respondent's financial difficulties, the lapse of time since termination and the Claimant's continued unemployment, the court awarded eight months' salary taking into account length of service and the Respondent's unlawful conduct.
Respondent's Counterclaim for alleged overpayment of Kshs. 54,373.30
Counterclaim failed for lack of evidence and was dismissed
The Respondent asserted an overpayment but adduced no evidence to prove it; the counterclaim therefore failed.
Legal principles established
#- The redundancy notice under Section 40(1)(a)/(b) is separate and distinct from the termination notice under Section 40(1)(f), and a mere termination letter does not satisfy the redundancy notice requirement
- A purposive reading of Section 40 requires the same one-month notice period whether or not the employee is a union member
- Consultation is an essential part of the redundancy process implied in Section 40
- Cost of keeping an employee cannot by itself be a valid selection criterion for redundancy
Court orders
#- 1.Declaration implied that termination by redundancy was unlawful and unfair (found and held)
- 2.Judgment entered for the Claimant in the sum of Kshs. 853,704 being eight (8) months' salary in compensation for unlawful and unfair termination
- 3.Interest at court rates from the date of judgment until payment in full
- 4.Costs of the case awarded to the Claimant
- 5.Respondent's Counterclaim dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)
Relief refused
#Re-instatement
Not appropriate in light of Respondent's financial difficulties and lapse of time
Re-engagement
Same as re-instatement
Permanent injunction against declaring the Claimant redundant and general damages for breach of statutory duty
Not granted; compensation in lieu awarded instead
Costs
The Claimant will have the costs of the case
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Flowing from the foregoing, I find and hold that the termination of the Claimant's employment on account of redundancy was unlawful and unfair.
It is now settled that the redundancy notice is separate and distinct from the termination notice provided under Section 40(1)(f).
the cost of keeping an employee by itself cannot be a valid consideration for selection of that employee for redundancy
Finally, I enter judgment in favour of the Claimant in the sum of Kshs. 853,704 being eight (8) months' salary in compensation for unlawful and unfair termination of employment.
This amount will attract interest at court rates from the date of judgment until payment in full.
The Claimant will have the costs of the case
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochieng v Tuko Media Limited (Cause E1070 of 2021) [2023] KEELRC 2117 (KLR)", Case Analysis (2023). Not stated in judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2117/eng@2023-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.