Odoyo & 5 others v General Conference of Seventh Day Adventist Church East-Central Africa Division (ECD) (Cause E063 of 2020) [2023] KEELRC 2785 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the failure to notify the employees and the labour officer one month before redundancy rendered the redundancy an unfair termination attracting compensatory damages
No. The redundancy had a valid reason and the employer substantially complied with section 40(1); only the one-month notification was missed, which is compensated by an award of one month's pay, not compensatory damages.
The court found that the Appellants did not challenge the validity of the reasons for the redundancy, only the notification. The Respondent's cafeteria had suffered consistent losses, justifying the leasing out of the business. Substantial compliance with section 40(1) existed apart from notice. The court held the deficiency did not meet section 45(2) unfairness and awarded one month's pay in lieu of the missed notification instead of 12 months' compensation.
Whether the Appellants were entitled to house allowance over and above their gross pay
No. Their gross pay was not below the consolidated gazetted minimum wage, so the salary was consolidated and included house allowance.
Reading section 31(2)(a) with Rule 4 of the Regulation of Wages (General) Order, the court reasoned that only an employee paid below the gazetted minimum wage plus 15% house allowance can demand the additional 15%. The payslips showed basic pay equal to gross pay, and the Appellants never claimed underpayment below the consolidated minimum wage.
Legal principles established
#- An employee whose wage or salary is above the minimum consolidated wage (gazetted minimum wage plus 15% house allowance) cannot claim an additional 15% house allowance on the basis that their salary is not consolidated.
- Failure to give the one-month notification under section 40(1)(b) of the Employment Act, where the employer substantially complies with section 40(1) and has valid reasons for redundancy, does not render the redundancy unfair under section 45(2); the remedy is an award of one month's pay in lieu of notification.
Court orders
#- 1.Judgment of Hon. L.B. Koech delivered on 22nd September 2020 upheld except that each Appellant is awarded one month's pay in lieu of notification of redundancy under Section 40(1)(b) of the Employment Act
- 2.Respondent to bear the costs of the appeal
- 3.Interest to accrue on the award of one month's pay from the date of judgment
- On appeal from
- Chief Magistrate's Court, Milimani
- CMEL 1869 of 2019
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court in employment and labour relations matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odoyo & 5 others v General Conference of Seventh Day Adventist Church East-Central Africa Division (ECD) (Cause E063 of 2020) [2023] KEELRC 2785 (KLR)", Case Analysis (2023). Milimani CMEL 1869 of 2019 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2785/eng@2023-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.