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ELRCPartially AllowedCause No E493 of 2022· [2023] KEELRC 2508 (KLR)

Kiliru v Savannah Brands Company Limited (Cause E493 of 2022) [2023] KEELRC 2508 (KLR)

Employment and Labour Relations Court
18 October 2023
LNLINNET NDOLO
2,204 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that firing an employee under 'redundancy' while giving their duties to others is unfair termination, awarding six months' salary.

What this practically means

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Executive summary

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The Claimant, employed as Operations Manager from 30th November 2020, alleged that the Respondent fundamentally altered his job description without consultation from December 2021, transferring key functions to newly created positions, and then terminated his employment under the guise of redundancy on 13th June 2022. He claimed salary increments, compensation, notice pay, severance, unremitted pension, accrued leave, a certificate of service, and costs. The Respondent maintained that a performance appraisal revealed underperformance, that it was entitled to alter the job description, and that it complied with the Employment Act. The Court, Linnet Ndolo J, framed two issues: lawfulness and fairness of the termination, and entitlement to remedies. The Court found no genuine redundancy: the Respondent merely offloaded the Claimant's duties to other officers, and any poor-performance case should have proceeded under Section 41, not redundancy. Following Jane Khalechi, Barclays Bank, Thomas De La Rue and Kenya Airways, the Court held the Section 40(1)(a) & (b) redundancy notice requirements distinct from the termination notice and unmet - only a two-week termination notice issued, with no notice to the Labour Officer. The Claimant was awarded six months' salary (Kshs. 2,100,000) with interest and costs. The salary increment claim failed because the clause 5.8 condition had not crystallised, and the pension claim was not proved.

Key legal issues

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01

Whether the termination on account of redundancy was lawful and fair

Holding

The termination was unlawful and unfair: there was no genuine redundancy, and the mandatory notice requirements of Section 40(1)(a) & (b) were not complied with

Reasoning

The Respondent merely offloaded the Claimant's functions to new officers, occasioned by alleged underperformance. Following Jane Khalechi and Barclays Bank, genuine redundancy requires justification and cannot rest on roles continuing unchanged. Poor performance should have been handled under Section 41. Only a two-week termination notice issued; no redundancy notice to the employee or Labour Officer was proved, contrary to Section 40(1)(a) & (b).

p. 5
02

Entitlement to remedies

Holding

Six months' salary in compensation awarded; salary increment and pension claims disallowed

Reasoning

Compensation was assessed at six months' salary considering length of service and the failure to establish genuine redundancy or follow due procedure. The salary increment claim failed because the contractual condition in clause 5.8 had not crystallised, and the pension claim was not proved.

p. 5

Legal principles established

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  • Where the roles performed by an affected employee continue unchanged, there is no genuine redundancy
  • A redundancy notice under Section 40(1)(a) & (b) is separate and distinct from the termination notice under Section 40(1)(f)
  • An employer cannot use redundancy to disguise a poor-performance case; such an employee must be subjected to a capability hearing under Section 41

Court orders

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  1. 1.Judgment entered in favour of the Claimant in the sum of Kshs. 2,100,000 being six (6) months' salary in compensation for unlawful and unfair termination of employment
  2. 2.Interest at court rates from the date of judgment until payment in full
  3. 3.Claimant awarded costs of the case

Authorities

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Legislation

  • Employment ActSection 10
  • Employment ActSection 2
  • Employment ActSection 40
  • Employment ActSection 41
  • Labour Relations Actdefinition of redundancy
  • ILO Convention No. 158-Termination of Employment Convention, 1982notice provisions

Cases cited (4)

  • Jane Khalechi v Oxford University Press E.A Ltd
    [2013] eKLR
  • Barclays Bank of Kenya Ltd & another v Gladys Muthoni & 20 others
    [2018] eKLR
  • Thomas De La Rue v David Opondo Omutelelma
    [2013] eKLR
  • Kenya Airways Limited v Aviation & Allied Workers Union of Kenya & 3 others
    [2014] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (first-instance employment claim)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kiliru v Savannah Brands Company Limited (Cause E493 of 2022) [2023] KEELRC 2508 (KLR)", Case Analysis (2023). Cause No E493 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2508/eng@2023-10-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.