Ng’ongah v Mount Kenya University (Cause 1 of 2022) [2023] KEELRC 2220 (KLR)
The bottom line
#A Kenyan court ruled a university's redundancy of a senior lecturer was unfair because it skipped mandatory legal steps, awarding him over Kshs 1.6 million.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Section 40 of the Employment Act in declaring redundancy
The redundancy was unprocedural: no notice to the Labour Officer was proved, no formal consultation with the Claimant, and only a few days' notice was given instead of one month
The court examined the integrity of the entire process against Section 40. RW1 confirmed no formal communication or consultation with the Claimant, and no evidence was led proving service of the redundancy notice on the Labour Officer one month prior. The Claimant received only about 4 days' notice. The mandatory steps in Section 40(1)(b) and (f) were therefore breached, rendering the redundancy unprocedural.
Substantive justification for the redundancy (Sections 43 and 45)
The Respondent failed to prove a true and factual redundancy situation because the taskforce report on harmonization of units was not produced in evidence
The employer asserted that the redundancy followed a workload analysis and harmonization of units recommended by a taskforce, but the taskforce report was never produced. The court could not confirm that the need for redundancy was for true and factual reasons justifying termination. Citing Radido J in Kombo Kai Mtoro, redundancy must satisfy the valid-and-fair test under Section 45.
Entitlement to terminal dues balance, compensation and supervision fees
The Claimant was awarded Kshs. 174,825/- balance on terminal dues, 7 months' salary as compensation under Sections 49 and 50, and Kshs. 150,000/- supervision fees for five proved students
Assuming the Respondent's figure of Kshs. 854,405 paid, and a salary of Kshs. 190,000/-, the payment fell short by Kshs. 174,825/-. Compensation of 7 months' salary was deemed sufficient given 7.5 years of service and no contribution to the termination. The Respondent, holding graduation lists, failed to prove the five supervised students did not graduate, and its limitation defence failed for want of evidence of when time began to run.
Legal principles established
#- The requirements of Section 40 of the Employment Act on redundancy are mandatory and must be fully complied with
- Termination through redundancy is subject to the fair termination provisions of Section 45 of the Employment Act; the employer must prove the operational requirement is valid and fair
- Consultation with employees or their representatives is required before termination on account of redundancy, per ILO Convention No. 158, Recommendation No. 166
Court orders
#- 1.A declaration that the Claimant's redundancy was unprocedural and the termination unfair
- 2.Payment of Kshs. 174,825/- being the balance due and owing on account of 3 months salary in lieu of notice, severance pay, accrued leave and salary for the month of February, 2020
- 3.Payment of 7 months' salary for the unfair termination at Kshs. 1,330,000/-
- 4.An order for payment of Kshs. 150,000 for supervision of Masters Students
- 5.Costs of the suit and interest until payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and Article 162(2) of the Constitution (employment and labour relations disputes); not expressly cited in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ng’ongah v Mount Kenya University (Cause 1 of 2022) [2023] KEELRC 2220 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2220/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.