M’Kungu v Presiding Bishop Methodist Church in Kenya & another (Cause 1560 of 2017) [2023] KEELRC 2251 (KLR)
The bottom line
#Kenya's Employment Court ruled the Church's 'restructuring' was really a redundancy, done unfairly, and awarded the ex-Security Manager over KShs 2.1 million.
What this practically means
#Executive summary
#Key legal issues
#Characterisation of the manner of termination
Despite the letter describing the termination as a 'restructuring measure', the evidence showed the position was abolished because security services were outsourced; the termination was on account of redundancy.
The Court examined the termination letter's reference to a 'restructuring measure' and RW1's witness statement that the Church wished to procure a security firm, concluding the termination was redundancy. Because the Employment Act prescribes different conditions and remedies for different modes of termination, the Court first had to characterise the separation correctly before assessing its lawfulness.
Procedural fairness in redundancy
The termination was procedurally unfair: no prior notice of intended redundancy was issued to the Claimant or the Labour Officer, and the one-month termination letter was predetermined and afforded no consultation.
Section 40(1) of the Employment Act requires prior notification to the employee and Labour Officer, which births consultation. The letter of 6th March 2015 was the first communication, had a predetermined end, and provided no room for consultation. No notice to the Labour Officer was proved. Consultation is integral to procedural fairness under section 45(2), so the termination was procedurally unfair by operation of law.
Substantive justification of the redundancy
The alleged redundancy was not genuine; the Respondent failed to discharge its burden of proving a valid and fair reason.
The employer bore the burden under sections 45(2) and 47(5) of the Employment Act. The asserted outsourcing of security services was of a magnitude requiring documentation - an outsourcing agreement or proof of payment - none of which was produced. The explanation of the lady, Emma, taking over was too casual. The evidence was too sketchy to be believed, so the redundancy was camouflaged and unjustified.
Remedies - compensation and salary for unexpired contract period
The Claimant was awarded 12 months' gross salary under section 49(1)(c) plus salary for the 28-month unexpired term of the fixed contract, calculated on the contractual basic salary of Kshs. 40,000.
The Court held it may award damages beyond section 49(1)(c), drawing on section 12 of the ELRC Act, where a constrained approach would occasion a travesty of justice. Having left a prior job on the strength of the appointment, and having lost the position unfairly within eleven months without fault, the circumstances justified the exceptional award of salary for the remainder of the contract.
Legal principles established
#- For a termination of employment to be fair there must be both substantive justification and procedural fairness
- The statutory redundancy procedure in section 40 of the Employment Act is mandatory and consultation is implicit in it
- Redundancy is a no-fault termination; lack of fault on the employee is its defining characteristic
- An employer must do more than assert a 'restructure'; it must produce reasonable details and documentation to prove the redundancy was genuine, especially where disputed
- The Court may award salary for the unexpired period of a fixed-term contract in addition to the section 49(1)(c) compensatory award where justice so requires
Court orders
#- 1.A declaration that the termination of the Claimant's employment on the ground of redundancy was procedurally and substantively unfair
- 2.Compensation pursuant to section 49(1)(c) of the Employment Act of 12 months' gross salary, Kshs. 1,031,088
- 3.Salary for the period up to the end of the fixed term contract, 28 months, KShs. 1,120,000
- 4.Interest on the sums awarded at court rates from the date of judgment until full payment
- 5.Costs of the suit to the Claimant
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act (jurisdiction to grant general damages)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M’Kungu v Presiding Bishop Methodist Church in Kenya & another (Cause 1560 of 2017) [2023] KEELRC 2251 (KLR)", Case Analysis (2023). Memorandum of Claim filed 4th August 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2251/eng@2023-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.