Omanyo v Chebett & 2 others (Sued as the Office Bearers of, and on Behalf of, and, as Officials of East Africa Petroleum Transporters Association (EAPTA)) (Cause E886 of 2022) [2023] KEELRC 3022 (KLR)
The bottom line
#A Kenyan employer's redundancy failed in court because it never notified the Labour Officer or consulted the employee, costing it salary, severance and compensation.
What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy was substantively justified
The Respondents may have had a reason to declare the Claimant redundant, but no evidence was tendered on the alleged restructuring, the old or new structure, or when financial challenges set in
The letter cited abolition of the role, inability to pay salary and desertion. No evidence of the organizational structure was produced despite the Claimant being the sole employee. Salary arrears showed the Claimant knew of financial challenges, but no board resolution or evidence of mitigation was tendered. The desertion allegation was foreign to redundancy as it is gross misconduct, and no steps to contact the Claimant were proved.
Whether the redundancy procedure was fair under Section 40(1) of the Employment Act
The redundancy was procedurally flawed: no proof of notification to the Labour Officer and no consultations, rendering the termination unfair
Section 40(1) prescribes mandatory conditions including one month's notice to the employee and the Local Labour Office, and consultation. The Respondents adduced no evidence that the notice was sent to the Labour Officer, making the notice ineffectual. It was common ground that no consultations took place before or after the notice. The procedural failure amounted to unfair termination.
Whether the Claimant handed over and cleared
The Claimant failed to demonstrate he handed over and was blameworthy for non-payment of dues
The Claimant admitted he was told to meet Mr. Twalib but did not physically hand over; his report omitted the laptop issued to him, showing he retained it. Payment of dues was subject to clearance and the Respondents were ready and willing to pay. His behaviour showed unwillingness to engage in a physical handover.
Whether the PAYE reliefs were sustainable
Both PAYE prayers were dismissed for want of evidence and lack of the court's mandate to enforce the Income Tax Act
The Claimant adduced no evidence or particulars of accrued PAYE, penalties or interest. The court held it had no mandate to enforce the Income Tax Act, and the Respondents indicated readiness to settle any tax arrears with KRA.
Legal principles established
#- For a redundancy to pass muster it must be substantively justifiable and conducted in accordance with a fair procedure
- The seven conditions in Section 40(1) of the Employment Act are mandatory
- The law places a heavy burden of proof on the employer to demonstrate the redundancy process was fair
- Consultations are an essential ingredient of the redundancy process and notification of the Labour Officer is indispensable
Court orders
#- 1.Judgment entered for the Claimant against the Respondents for 120 leave days
- 2.Severance pay for 4 completed years of service
- 3.One month's salary in lieu of notice
- 4.Equivalent of 3 months salary Kshs. 420,000/=
- 5.Certificate of service
- 6.Costs of the suit to the Claimant
- 7.Interest at court rates from date of judgment till payment in full
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance unfair termination claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omanyo v Chebett & 2 others (Sued as the Office Bearers of, and on Behalf of, and, as Officials of East Africa Petroleum Transporters Association (EAPTA)) (Cause E886 of 2022) [2023] KEELRC 3022 (KLR)", Case Analysis (2023). Cause No E886 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3022/eng@2023-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.