Nyangorora v Longhorn Publishers Limited (Cause 2040 of 2017) [2023] KEELRC 3247 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the redundancy was a genuine and justified operational requirement
The court was satisfied that the Respondent demonstrated a genuine restructuring of its Sales and Operations Department leading to redundancy, and the allegation of targeting/witch hunt failed for want of evidence.
The court found letters to the Claimant and Labour Officer showed restructuring occasioned the redundancy affecting two positions, one of which the Claimant held. The witch-hunt allegation lacked particulars, dates, or documentary support. Section 43(1) requires the employer to prove reasons for termination; here the restructuring was demonstrated on the evidence.
Whether the notice requirements of Section 40(1) were complied with
Yes - the notice of about 2 months to the Claimant and Labour Officer satisfied the statutory minimum of one month; a second termination notice is not required under Section 40(1)(f).
The letters dated 26th and 28th July 2016 gave an effective date of 26th September 2016, exceeding the one-month minimum. Relying on Thomas De La Rue and Cargill Kenya Ltd, the court held that Section 40(1) does not mandate a general plus a separate specific notice, nor a termination notice under subsection (f).
Whether consultations were required and conducted
Consultations are a mandatory implied requirement; the Respondent did not controvert the Claimant's evidence that he was not consulted, rendering the termination unfair.
Although Section 40 does not expressly require consultation, courts have domesticated Article 13 of ILO Recommendation No. 166 as mandatory via Article 2(6) of the Constitution, as held in Cargill Kenya Ltd. The Respondent produced no documentary evidence of consultations, and RWI confirmed no records of deliberations existed.
Whether a selection criteria was applied under Section 40(1)(c)
No - the Respondent tendered no evidence of the selection criteria or how the Claimant's department was selected, breaching Section 40(1)(c).
RWI asserted the restructuring was organisation-wide but offered no criteria or explanation of the selection. Per Maraga JA in Kenya Airways Ltd, LIFO need not apply universally, but any criteria must be reasonable and applied rationally and objectively. Absence of any criteria meant the provision was not complied with.
Quantum of compensation for unfair termination
The Claimant was entitled to compensation under Section 49(1)(c); the court awarded the equivalent of two months' gross salary rather than the 12 months sought.
Applying Section 49(4) factors: about 4 years' service (short), no appeal against the decision or wish to continue in employment, diligent service with no warnings, and no contribution to the termination. These circumstances made two months' salary a fair equivalent rather than the 12 months claimed.
Legal principles established
#- Section 40(1) of the Employment Act prescribes mandatory conditions for a valid redundancy, and compliance must be effective and proven.
- Section 40(1) does not require two separate notices (a general and a specific notice); a second notice of termination is not a condition under Section 40(1)(f).
- Consultation with affected employees is an implied mandatory requirement in redundancy by virtue of ILO Recommendation No. 166 and Article 2(6) of the Constitution.
- An employer must prove the reason for termination under Section 43(1); failure renders the termination unfair.
- The employer must adduce evidence of selection criteria under Section 40(1)(c); LIFO need not apply in all circumstances but the criteria must be reasonable and applied rationally and objectively.
Court orders
#- 1.Declaration that termination of employment was unlawful and unfair.
- 2.Award of the equivalent of 2 months gross salary.
- 3.Costs of the suit to the Claimant with interest at court rates from the date of judgment until payment in full.
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (first-instance claim for unfair termination on account of redundancy)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyangorora v Longhorn Publishers Limited (Cause 2040 of 2017) [2023] KEELRC 3247 (KLR)", Case Analysis (2023). Cause No 2040 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3247/eng@2023-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.